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1909 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


#»*«TrKW7=  tsF  wmTWW^ 


CASES  ON 


MEASURE    OF 
DAMAGES 


SELECTED  BY 


ISAAC   FRANKLIN   RUSSELL 

PROFESSOR  OF  LAW  IN  NEW  YORK  UNIVERSITY 


CHICAGO 

CALLAGHAN   &  COMPANY 
1909 


COPYRIGHT,  1909, 

By 

:ALLAGHAN  &  COMPANY 


T 

^9 143  A 


PREFACE 


The  editor  has  endeavored  to  select  a  list  of  cases  on  the  law  of 
damages  that  have  a  distinct  value  and  adaptability  to  pedagogic 
purposes.  No  effort  has  been  made  to  furnish  materials  for  briefs 
or  meet  the  wants  of  practitioners,  who  may  be  pursuing  minute 
and  special  inquiries.  His  researches  have  necessarily  covered 
a  wide  field,  and  the  matter  presented  is,  in  general,  in  condensed 
form.  The  editor  makes  his  acknowledgment  of  the  pre-em- 
inence of  Hadley  v.  Baxendale  by  according  to  that  ease  the 
unique  distinction  of  an  unabridged  report. 

I.   F.   E. 
New  York  University  Law  School, 
October  1st,  1909. 


735916 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesonmeasureofOOruss 


TABLE  OF  CASES  CITED 


[The  references  are  to  the  pages.] 


Adams  v.  Popham,  502. 
Adderly  v.  Dixon,  72. 
Aetna  Life  Ins.  Co.  v.  Nexsen,  SO. 
Ainsworth  v.  Laking,  645. 
Albany  S.  R.  R.  v.  Dayton,  590. 
Alder  V.  Keighley,  201. 
Aldworth  v.  Lynn,  496,  497,  499. 
Allen  V.  Fox,  492. 
Allen  V.  Glen  Creamery  Co.,  358. 
Allen  V.  Jarvis,  256,  337. 
Alewyn  v.  Pryor,  259. 
Alexander  v.  Kerr,  20. 
Allsop  V.  Allsop,  110,  113,  524. 
American  T.  Co.  v.  Siegel,  360. 
Amos  V.  Oakley,  37. 
Anderson  v.  Sloane,  83. 
Andrews  v.  Booth,  514. 
Andrews  v.  Hoover,  605. 
Andrews  v.  Keith,  255. 
Anthony  v.  N.  Y.  R.  Co.,  659. 
Anvil  Mining  Co.  v.  Humble,  121. 
Archer  v.  Williams,  199,  624. 
Armfield  v.  Nash,  369,  377. 
Arnold  v.  Blabon,  359. 
Ashby  V.  White,  3,  4,  26. 
Astley  V.  Weldon,  175,  185,  186. 
Ashmore  v.  Cox,  640. 
Atchison  R.  R.  v.  Thomas,  121. 
Atkins  V.  Kinnier,  186. 
Atkinson  v.  Bell,  337. 
Atoka  C.  &  M.  Co.  v.  Miller,  694. 
Aurora  City  v.  West,  047. 
Avery  v.  Ray,  632,  634. 
Ayres  v.  D.  L.  &  W.,  190. 
Badostain  v.  Graside,  512,  673. 
Bagley  v.  Peddle.  162. 
Bagley  v.  Smith.  238. 
Bain  v.  Fothergill,  250. 
Bailey  v.  Bailey,  551. 


Baker  v.  M.  R.  R.  Co.,  60. 
Baker  v.  Pennsylvania  Co.,  99. 
Baldwin  v.  Porter,  478. 
Baldwin  v.  U.  S.  Tel.  Co.,  569. 
Baldy  v.  Stratton,  560. 
Ballou  v.  Farnum,  449. 
Bait.  &  O.  R.  R.  V.  Carr,  693. 
Baltimore  R.  R.  v.  Baer,  643. 
Bank  v.  Bank,  626. 
Bank  v.  Marshall,  153. 
Bank  of  Commerce  v.  Goos,  142. 
Bank  of  Montgomery  v.  Reese,  208, 

604,  629. 
Bannon  v.  Ins.  Co.,  562. 
Barker  v.  Dixie,  685. 
Barker  v.  Lewis,  647. 
Barker  v.  W.  U.  Tel.  Co.,  581. 
Barnard  v.  Poor,  651. 
Barnes  v.  Keene.  189. 
Barnes  v.  Railroad.  679. 
Barnes  v.  W.  U.  Tel.  Co.,  581. 
Barrick  v.  Schifferdecker,  496. 
Bartram  v.  Stone,  635. 
Basten  v.  Butler,  279. 
Bates  V.  Warwick,  465. 
Baxendale  v.  Railroad,  290,  654. 
Baxter  v.  Campbell,  142. 
Beale  v.  Hayes,  162. 
Bealey  v.  Shaw,  7,  8. 
Beath  v.  Rapid  R.  Co.,  121. 
Beaulieu  v.  R.  R..  121. 
Becker  v.  Dupree,  129. 
Beckham  v.  Drake,  367. 
Bee  Pub.  Co.  v.  World,  527. 
Beeson  v.  Mining  Co..  4.50. 
Beisiegel  v.  N.  Y.  C.  R.  R.  Co.,  49. 
Bell  V.  Railway  Co..  106,  113.  116, 

130. 
Benjamin's  Exrs.  v.  Smith,  435. 
Bennett  v.  Gibbons,  136. 


VI 


TABLE  OF  CASES  CITED. 


[The  references  are  to  the  pages.] 


Bennett  v.  Sweet,  93. 

Benton  v.  Collins,  G85. 
Beuziger  v.  Miller,  30. 
Bernheiiuer  v.  Becker,  534. 
Beyer  v.  Ins.  Co.,  502. 
Bierbach  v.  Rubber  Co.,  83. 
Billings  V.  Marsh,  93. 
Birchard  v.  Booth,  495,  636. 
Bird  V.  Hempsted,  94. 
Birdseye's  Appeal,  62. 
Birmingham  v.  Railway,  289. 
Bishop  V.  Journal,  527. 
Bixby  V.  Dunlap,  132,  142. 
Black  V.  Baxendale,  196. 
Blackford  v.  Packing  Co.,  228. 
Black  River  R.  R.  v.  Barnard,  590. 
Blake  v.  Barnard,  508. 
Blake  v.  Midland  Railway  Co.,  201, 

438. 
Blanchard  v.  Baker,  5,  7.  8,  10. 
Blanchard  v.  Ely,  75,  77,  78. 
Block  V.  Bannerman,  399. 
Blood  V.  Wilkins,  22,  23. 
Bloomington  v.  Perdue,  426. 
Blunt  V.  McCormick,  496,  497. 
Blyenburgh  v.  Welsh,  606. 
Boardman  v.   Goldsmith,  639,   681, 

682. 
Board  of  Com.  v.  Arnett,  645. 
Board  of  Water  Com'n  v.   Shutts, 

600. 
Boehrer  v.  Juergens,  218. 
Bodley  v.  Reynolds,  196,  199. 
Bohm  V.  Metropolitan  R.  R.,  591. 
Bolivar  v.  Neponset,  6. 
Bonino  v.  Caledonio,  634, 
Bonneau  v.  N.  S.  R.  R.,  146. 
Bonomi  v.  Backhouse,  42,  43. 
Booge  V.  Railroad  Co.,  369,  378. 
Boogher  v.  Bryant,  27. 
Boorman  v.  Nash,  67,  71. 
Booth  v.  Mill  Co.,  352,  390. 
Borradaile  v.  Brunton,  195,  199. 
Boston  &  A.  R.  R.  v.  O'Reilly,  413. 
Botkin  V.  Miller,  218. 
Boulard  v.  Calhoun,  129. 
Bourdette  v.  Steward,  27. 
Bourne  v.  Ashley,  483. 


Bowas  V.  Pioneer  Tow  Line,  210. 

Bower  v.  Hill,  5. 
Bowers  v.  State,  565. 
Boyce  v.  Bayliffe,  199. 
Boydan  v.  Haberstumpf,  142. 
Boyd  V.  Siffkin,  259. 
Bradlaugh  v.  Edwards,  528. 
Bradley  v.  Wheeler,  315,  471,  472. 
Bradshaw  v.  Board,  461. 
Bradshaw  v.  R.  R.  Co.,  441. 
Bragg  v.  Cole,  278. 
Braithwaite  v.  Hall,  94. 
Brandt  v.  Bowlby,  196. 
Brantingham  v.  Fay,  50. 
Brass  v.  Worth,  624. 
Bratt  V.  Swift.  121. 
Brewer  v.  Dew,  94. 
Brewster  v.  Sillimann,  492. 
Brinkman  v.  Cotton  Oil  Co.,  121. 
Bristol  Mfg.  Co.,  v.  Gridley,  52. 
British  Mill  Co.  v.  Nettleship,  222, 

258. 
Brizsee  v.  Maybee,  486. 
Brooks  V.  Harrison,  525. 
Brooks  V.  Railway  Co.,  416,  615. 
Brown  v.  Bellows,  178. 
Brown  v.  Cummings,  512. 
Brown  v.  Evans,  673. 
Brown  v.  Asphalt  Mfg.  Co.,  360. 
Brown  v.  Smith,  363. 
Brown  v.  Weir,  33. 
Browning  v.  Jones,  552. 
Browning  v.  Simons,  27. 
Bruske  v.  Neugent,  511. 
Bryan  v.  R.  R.  Co..  399. 
Brzezinski  v.  Tierney,  134. 
Bullock  V.  D.  L.  &  W.  R.  R.,  142. 
Bull  V.  R.  R.,  145. 
Burgoon  v.  Johnson,  186. 
Burke  v.  Melvin,  634. 
Burrall  v.  Buskwick  R.  R.  Co.,  320. 
Burrell  v.  Daggett,  178. 
Burr  v.  Burr,  532. 
Burr  v.  Plymouth,  135,  136,  509. 
Burrows  v.  Marsh  Co.,  223. 
Burtis  v.  Thompson,  370,  372. 
Burton  v.  Holley,  80. 
Burt  V.  Dutcher,  475. 


TABLE  OF  CASES  CITED. 


Vll 


[The  references  are  to  the  pages.] 


Bush  V.  Cole,  241. 

Bussy  V.  Donaldson,  604. 

Butler  V.  Manhattan  R.  R.,  190. 

C.  &  A.  R.  R.  Co.  V.  Lewandowski, 

688. 
Cable  Co.  v.  Lathrop,  572. 
Callahan  v.  Chickasha,  679. 
Caldwell  v.  Vlcksburg  R.  Co.,  685. 
Caldwell  v.  Steamboat  Co.,  130. 
Cameron  v.  White,  31. 
Campbell  v.  Car  Co.,  130. 
Campbell  v.  Los  Angeles  T.  Co.,  121. 
Campbell  v.  Seaman,  506. 
Canada  v.  Canada,  335. 
Canandaigua  R.  R.  v.  Payne,  590. 
Candee  v.  W.  U.  Tel.  Co.,  210. 
Carney  v.  Reed,  674. 
Carpenter  v.  City  of  Red  Cloud,  145. 
Carpenter  v.  Holcomb,  367. 
Carr  v.  Miner,  685. 
Carter  v.  Wells,  685. 
Casasa  v.  N.  Y.  C.  R.  R.,  145. 
Cashion  v.  Telegraph  Co.,  115. 
C.  B.  &  Q.  R.  R.  Co.  V.  Schaffer,  495. 
Central  C.  &  C.  Co.  v.  Hartman,  228. 
Central  T.  Co.  v.  Clark,  228. 
Chamberlain  v.  Chandler,  396,  399. 

Chamberlain  V.  Lake   Shore   R.   R., 
145. 

Chamberlain  v.  Parker,  27. 

Chamberlain  v.  Williamson,  436. 

Chamberlain  v.  Morgan,  368,  376. 

Champion  v.  Short,  278. 

Chapman  v.  Kirby,  207,  218. 

Chapman  v.  W.  U.  Tel.  Co.,  457. 

Charles  v.  Lumber  Co.,  464. 

Chase  v.  Alaska  F.  &  L.  Co.,  381. 

Chase  v.  Allen,  163, 

Chaude  v.  Shepard,  183, 18.5. 

Cheddick's  Executor  v.  Marsh,  157. 

Chellis  V.  Chapman,  525,  560. 

Cherbulliez  v.  Parsons,  145. 

Chesley  v.  Thompson,  523. 

Chicago  &  Alton  R.  R.  Co.  v.  Flagg, 
403. 

Chicago  &  A.  R.  R.  v.  Lewandowski, 


Chicago  &  Alton  R.  R.  v.  Maher, 

455. 
Chicago  &  E.  I.  R.  R.  v.  DriscoU, 

450. 
Chicago  V.  Huenerbein,  120. 
Chicago  V.  Lonergan,  600. 
Chicago  &  M.  R.  R.  v.  Ullrich,  190. 
Chicago  R.  R.  v.  Nolin,  600. 
Chicago  &  N.  R.  Co.  v.  Scates,  555. 
Chicago  R.  R.  v.  Butler,  121. 
Chicago  V.  Tilley,  355. 
Chicago  T.  R.  Co.  v.  Gruss,  688. 
Chicago  U.  &  T.  Co.  v.  Ertrachter, 

679. 
Cheddick's  Executor  v.  Marsh,  157. 
Chipman  v.  Palmer,  502. 
Chisholm  v.  Preferred  Bankers,  3S0. 
Chrysler  v.  Canaday,  186,  538,  539. 
Churchill  v.  Lewis,  552. 
Cicero  &  P.  R.  Co.  v.  Brown,  688. 
City  of  Fort  Wayne  v.   Hamilton, 

656. 
City  of  Joliet  v.  Blower,  630. 
City  of  New  Britian  v.  Tel.  Co.,  186. 
City  of  Rock  Island  v.  Starkey,  121. 
Clare  v.  Maynard,  65. 

Clark  V,  Brown,  516. 

Clark  V.  Clark,  646. 

Clark  V.  Fitch,  547. 

Clark  V.  Newsam,  180. 

Clark  V.  Whittaker,  646. 

Clayton  v.  Andrews,  332. 

Cleghorn  v.  Railroad  Co.,  131,  532. 

Clement  v.  Cash,  162. 

Clement  v.  Schuylkill  R,  R.  Co.,  158. 

Clements  v.  Railway  Co.,  614. 

Cliseold  V.  Machell,  130. 

Close  V.  Crossland,  292, 

C.  &  M.  E.  R.  R.  Co.  V.  Krempel, 
120. 

C.  &  N.  W.  Ry.  Co.  V.  Hoag,  496. 

Cobb  V.  Simon,  146. 

Cobb  V.  Smith,  496. 

Cochran  v,  Ammon,  97. 

Cochrane  v.  Com.,  659. 

Cockburn  v.  Lumber  Co.,  351, 

Cohn  V.  Norton,  47. 

Colburn  v,  Woodworth,  378. 


VIU 


TABLE  OP  CASES  CITED. 


[The  refei-ences  are  to  the  pages.] 


Cole  V.  R.  R.  Co.,  397,  402. 

Cole  V.  Ellwood,  000. 

Collen  V.  Wright,  289. 

Collins  V.  De  Laporte,  256,  308,  309. 

Collins  V.  Price,  367. 

Coluian  V.  White,  551. 

Colo.  S.  R.  R.  Co.  V.  Petit,  120. 

Colt  V.  Owens,  630. 

Colwell  V.  Lawrence,  161. 

Comer  v.  Taylor,  565. 

Condict  V.  Grand  Trunk  R.  Co.,  421. 

Connecticut  Ins.  Co.  v.  R.  R.  Co., 

446. 
Cone  v.C.  R.  of  N.  J.,  534. 
Connelly  v.  Devoe,  355. 
Conner  v.  Henderson,  279. 
Connor  v.  State,  416. 
Cook  V.  Bartholomew,  449. 
Cook  V.  Ellis,  532. 
Cooke  V.  England,  496. 
Cook  V.  Loomis,  409,  646. 
Coolidge  V.  Neat,  564. 
Cooper  V.  Elston,  332. 
Cooper  V.  MuUins,  403. 
Cooper  V.  Randall,  496. 
Coppin  V.  Braithwaite,  399. 
Corcoran  v.  Harron,  636,  673. 
Cornelius  v.  Hambay,  549. 
Cort  V.  R.  R.  Co.,  256,  312,  337,  368. 
Costigan  v.  The  Railroad  Co.,  365, 

368,  369. 
Cotheal  v.  Talmage,  162,  164. 
Cotton  Oil  Co.  V.  Skipper,  120. 
Cottrill  V.  Krum,  538. 
Cox  V.  Burbidge,  462. 
Cox  V.  P.  H.  &  P.  Co.,  600. 
Cox  V.  Walker,  65. 
Crabtree  v.  Messermoth,  312. 
Craft  Co.  V.  Quinnipiac,  133. 
Craker  v.  R.  R.  Co.,  398,  402,  458. 
Crane  v.  Bennett,  527. 
Crawford  v.  Oil  Co.,  464. 
Cregin  v.  B.  C.  R.  R.  Co.,  4.36,  440. 
Crescent   Manuf'g  Co.   v.   Manuf'g 

Co.,  31. 
Crist  V.  Armour,  370,  372. 
Crofoot  V.  Bennett,  471. 
Croft  V.  Alison,  532. 


Crookshank  v.  Burrell,  299,  332. 

Crowell  V.  Moley,  218. 

Cruikshank  v.  Gordon,  138. 

Cud  V.  Rutter,  629. 

Culver  V.  Hill,  80. 

Cunningham  v.  Reardon,  461. 

Currie  v.  Waverly  R.  Co.,  661. 

Curry  v.  Sandusky  F.  Co.,  228. 

Cushina  v.  Drew,  153. 

Cushman  v.  Ryan,  634. 

Cushman  v.  Waddell,  688. 

Cutler  V.  How,  179. 

Dalton  V.  Biers,  510. 

Dana  v.  Fiedler,  284,  312. 

Danforth  v.  Walker,  256,  308. 

Daniels  v.  Ballantine,  420. 

Daniels  v.  Clegg,  425. 

Daniels  v.  C.  &  N.  W.  R.  R.  Co.,  456. 

Daniels  v.  Newton,  38,  374. 

Danube  &  B.  S.  Co.  v.  Xenos,  371. 

Davenport  v.  Bradley,  54. 

Da  vies  v.  Jenkins,  198. 

Davis  V.  Ark.  R.  R.,  27. 

Davis  V.  C.  &  O.  R.  R.,  534. 

Davis  V.  Garrett,  222,  223. 

Davis  V.  Mayor,  etc.  of  N.  Y.,  502. 

Davis  V.  M.  C.  R.  R.  Co.,  585. 

Davis  V.  Shepstone,  681. 

Davis  V.  White,  692. 

Deane  v.  Hathaway,  93. 

Decamp  v.  Hewitt,  377. 

Delavergne  v.  Norris,  239. 

Delaware  &  R.  Canal  Co.  v.  Wright, 

496. 
De  Leon  v.  McKernan,  390. 
De  Vaughn  v.  Heath,  681. 
Delp  V.  Edlis,  642. 
Deming  v.  Railway  Co.,  165. 
Denver,  etc.  R.  Co.,  v.  Frame,  478. 
Denver,  etc.  Co.,  v.  Lorentzen,  95. 
Derby  v.  Johnson,  335,  338,  355,  357. 
Des  Arts  v.  Leggett,  300. 
Detroit  Daily  Post  Co.  v.  McArthur, 

129. 
Detroit,  etc.  R.  R.  Co.  v.  VanStein- 

burg,  424. 
DeVoe  v.  Salvador,  200. 
Dewey  v.  I'eck,  456. 


TABLE  OP  CASES  CITED. 


IX 


[The  references  are  to  the  pages.] 


Dewire  v.  Hanley,  27. 

Dey  V.  Dox,  71. 

Dickins  v.  ]\\  Y.  Cent.  R.  R.  Co.,  439. 

Dice  V.  Sherberneau,  589. 

Diebold  v.  Sharp.  443. 

Diers  v.  Edwards,  27. 

Dillard  v.  Collins,  94. 

Dillon  V.  Anderson,  308,  312,  368. 

Dollard  v.  Roberts,  190. 

Donk  Bros.  C.  &  C.  Co.  v.  Thil,  122. 

Donnell  v.  Donnell,  613. 

Donnelly  v.  Harris,  636,  673. 

Donovan  v.  C.  &  N.  W.  Ry.  Co.,  514. 

Donovan  v.  Hahaner,  186. 

Doolittle  V.  Murray,  360. 

Doran  v.  Cohen,  94. 

Drake  v.  Railway  Co.,  615. 

Draper  v.  Baker,  673. 

Draper  v.  Randolph,  335,  338. 

Drew  V.  Beall,  542. 

Drew  v.  Sixth  Ave.  R.  R.,  190. 

Drewe  v.  Coultin,  4. 

Driggs  V.  Dwight,  92. 

Drumm,    Glato   Co.,    v.    Edmisson, 

647. 
Dry  Dock  Co.  v.  Mcintosh,  50. 
Duckworth  v.  Alison.  158. 
Dugan  V.  Anderson,  374. 
Dunlop  V.  Gregory,  162. 
Durst  V.  Burton,  284. 
Duryea  v.  Mayor,  496. 
Duval  V.  Davey,  643. 
Dustan  v.  Andrew,  284,  305. 
Dwinelle  v.  N.  Y.  C.  &  H.  R.  R.  R. 

Co.,  399. 
Dyas  V.  S.  P.  Co.,  451. 
Eado  V.  Metropolitan   St.  Ry.  Co., 

399. 
Earle  v.  Coburn,  254. 
Earle  v.  Tupper,  637. 
East  V.  Bigelow,  672. 
East  India  Co.  v.  "Vincent,  246. 
Eastland  v.  Caldwell.  515,  516. 
Eastman  v.  Mayor,  545. 
Eaton  V.  Langley,  493. 
Eddy  V.  Rapid  Transit  Co.,  401. 
Ehrgott  V.  Mayor,  228. 
Elderton  v.  Emmons,  367. 


Eldridge  v.  Gorman,  52. 

Ellis  V.  Andrews,  538,  539 

Ellis  V.  Hilton,  645. 

Emerson  v.  Brigham,  278. 

Emery  v.  Boyle,  186. 

Emmons  v.  Elderton,  368. 

Emmons  v.  Sheldon,  147. 

Enfield  v.  Town  of  Ellington,  45. 

Engle  v.  Fitch,  241. 

Evans  v.  Heystone  Co.,  030. 

Everard  v.  Hopkins,  196,  257. 

Everrord  v.  Gabbert,  674. 

Eviston  V.  Cramer,  130. 

Ewing  V.  Railway  Co.,  109. 

Fairfax  v.  New  York  C.  &  H.  R.  Co., 

478. 
Fales  V.  Hemenway,  37. 
Farwell  v.  Price,  484. 
Fay  V.  Guynon,  37. 
Fayo  V.  Parker.  132,  142. 
Fergusson  v.  Tel.  Co.,  581. 
Fenelon  v.  Butts,  458,  636,  673. 
Ferris  v.  Spooner,  312. 
Fidler  v.  McKinley,  663,  664. 
Field  V.  Roosa,  255. 
Filer  v.  N.  Y.  C.  R.  R.,  189. 
Findlater  v.  Dorland,  546. 
Fisher  v.  Asphalt  Co.,  290,  291. 
Fitzgerald  v.  Leonard,  296. 
Flanders  v.  Colby,  509. 
Flint  V.  Transportation  Co.,  398. 
Fleischmann  v.  Samuel,  483. 
Fletcher  v.  Dycke,  158. 
Fletcher  v.  Rylands,  42. 
Flynn  v.  Butler,  93. 
Fouldes  V,  Willoughby,  222. 
Fohrman  v.  Consol.  T.  Co.,  146. 
Foley  V.  42nd  St..  etc.  Ry.  Co.,  415. 
Fontaine  v.  Lumber  Co.,  22. 
Ford  V.  Schliessman.  458,  459. 
Forsyth  v.  Palmer,  604. 
Forsythe  v.  Wells.  481. 
Fowler  v.  Armour,  369. 
Fowler  v.  Fowler,  514. 
Fowler  V.  Gilman,  488. 
Fowler  v.  Middlesex,  6.59. 
Fowler  v.  Armour.  378. 
Foxall  V.  Barnett,  200. 


TABLE  OF  CASES  CITED. 


[The  references 
Fox  V.  Glastenburg,  425. 
Fox  V.  Harding.  303. 
France  v.  (J:iiidet,  ()29. 
Francbot  v.  Leach.  368. 
Francis  v.  Bnruett,  94. 
Francis  v.  Schoellkopf,  502. 
Franklin  v.  Low,  433. 
Fraser  v.  Freeman,  533. 
Frazer  v.  Berkeley,  633. 
Frazer  v.  Biiielow  C.  Co.,  645,  647. 
Frieland  v.  Muscatine,  616. 
Freeman  v.  Clute,  77. 
French  v.  Ramge,  SO. 
Frost  V.  Knight,  234,  272,  309,  370. 

371,  372. 
Ft.  Wayne  v.  Hamilton,  656. 
Funke  v.  Allen,  579. 
Gainsfordv.  Carroll,  67,  71. 
Galbraith  v.  Fleming,  51. 
Galloway  v.  C.  M.  &  St.  P.  R.  R., 

145. 
Gammon  v.  Hone,  178. 
Gaudell  v.  Pontigny,  367,  369,  377. 
Ganstler  v.  Met.  Tel.  Co.,  506. 
Gardner  v.  Village  of  Newburgh,  6. 
Garing  v.  Frazer,  63. 
Gartside  C.  Co.  v.  Turk,  688. 
Gatzow  V.  Buening,  146. 
G.  C.  &  S.  F.  R.  R.  Co.  V.  Copeland, 

403. 
Geiger  v.  Railroad  Co.,  179. 
General  Fire  Extinguisher  Co.  v.  R. 

R.   Co.,   421. 
Gere  v.  Ins.  Co.,  614. 
Germaine  v.  Burton,  279. 
German  F.  Co.  v.  Armsby,  360. 
Georgia  v.  Bond,  514. 
Gibney  v.  Lewis,  134,  135, 136. 
Giese  v.  Schultz,  458,  562,  564. 
Giese  v.  Schultz,  564. 
Giles  V.  O'Toole,  92. 
Gillett  V.  Western  R.  R.  Co.,  644. 
Gillis  V.  Space,  30. 
Gil  man  v.  Brown,  464. 
Gilman  v.  McClatchy,  521,  527. 
Girard  v.  Taggart,  604,  005. 
Gizler  v.  Witzel,  637,  074. 
Glasby  v.  Cabot,  630. 


are  to  the  pages.] 
Gleeson  v.  R.  R.  Co.,  420. 
Gleghorn  v.  Railroad  Co.,  136. 
(Jlenn  v.  P.  &  W.  T.  Co.,  121. 
Globe  F.  Co.  v.  Cotton  Oil  Co.,  359. 
Glynn  v.  Dock  Co.,  222. 
Gold  V.  Ives,  53. 
Goodman  v.  Pocock,  377. 
Goodsell  V.  Railroad  Co.,  447. 
Goodwin  v.  C.  &  W.  Canal  Co.,  612. 
Gordon  v.  Brewster,  369,  378. 
Gordon  v.  Norris,  345,  347. 
Gorton  v.  Harmon,  450. 
Gouge  V.  Roberts,  670. 
Grable  v.  Musgran,  550. 
Grace  v.  Dempsey,  458. 
Graeslle  v.  Carpenter,  615. 
Graham  v.  Consol.  T.  Co.,  451. 
Graham  v.  Bickham,  132. 
Graham  v.  Jackson,  344. 
Graham  v.  Jackson,  394. 
Grand  R.  R.  Co.  v.  Jarvis,  228. 
Grand  Tower  Co.  v.  Phillips,  360. 
Grant  v.  City  of  Brooklyn  49,  220. 
Grau  V.  Grau,  27. 
Graves  v.  Moses,  644. 
Gray  v.  Howell,  250. 
Graybill  v.  DeYoung,  145. 
Grebert-Borgnes  v.  Nugent,  289. 
Gregory  v.  Morris,  493. 
Green  v.  Boston  &  L.  R.  Co.,  360, 

477. 
Green  v.  Hudson  R.  R.  R.  Co.,  437. 
Greenfield  v.  Railway  Co.,  "615. 
Gruman  v.  Smith,  630. 
Grund  v.  VanVleck,  129. 
Guille  V.  Swan,  218. 
Gurley  v.  Railway  Co.,  692. 
Hacker  v.  Heiney,  459. 
Hackett  v.  Smelsley,  588. 
Hadly  V.  Gano,  34.5. 
Hadley  v.  Baxendale,  191. 
Hadley  v.  Hey  wood,  5.51. 
Hagan  v.  Railroad  Co.,  131. 
Haight  V.  Hayt,  434,  436. 
Haile  v.  Railroad  Co.,  109. 
Haines  v.  Schultz,  130,  146,  511. 
Halleran  v.  Bell  Tel.  Co.,  410. 
Hall  V.  Rupley,  335. 
Hambleton  v.  Veere,  39. 


TABLE  OP  CASES  CITED. 


XI 


[The  references  are  to  the  pages.] 


Hambly  v.  Troth,  432. 
Hamer  v.  Hathaway,  483. 
Hamilton  v.  Mcl'herson,  36S. 
Hamilton  V.  Third  Ave.,  R.  R.  Co., 

149,  401. 
Hamlin  v.  Ry.  Co.,  3S3,  3S9. 
Hammersley  v.  DeBiel.  231,  232. 
Hammond  v.  Bussey,  654. 
Hannibal  R.  Co.  v.  Martin,  688. 
Hansen  v.  Boyd,  692. 
Hargreaves  v.  Kimberly,  496,  497. 
Harman  v.  Tappeuden,  4. 
Harris  v.  Nobbs,  114. 
Harris  v.  Panama    R.    R.    Co.,   483, 

630. 
Harry  v.  Edmonds,  129. 
Hart  V.  Direct  Cable  Co.,  570. 
Harvey  v.  Coal  Co.,  416. 
Hatfield  v.  C.  R.  R.,  523. 
Haviland  v.  Chase,  142. 
Haven  v.  Manufacturing  Co.,  85. 
Haverley  v.  Elliott,  488. 
Hawes  v.  Knowies,  130,  142. 
Hawk  v.  Ridgway,  682. 
Hayden  v.  Demets,  317. 
Hays  V.  R.  R.  Co.,  27. 
Heald  v.  Carey,  222. 
Healy  v.  Fallon,  646. 
Heavilon  v.  Kramer,  30. 
Heer  v.  Warren,  122. 
Helbing  v.  Cemetery  Co.,  415. 
Hendershott  v.  Tel.  Co.,  573. 
Henderson  v.  Agon,  512. 
Henderson  v.  McReynolds,  528. 
Henderson  V.  N.   Y.  C.   R.  R.,   591, 

592. 
Herring  v.  Finch,  3. 
Herring  v.  Railroad  Co.,  421. 
Hlbbard  v.  W.  U.  Tel.  Co.,  577. 
Hickey  v.  Baird,  85. 
Hickey  v.  Welch,  190. 
Hicks  V.  Drew,  190. 
Higgins  V.  Mansfield,  80. 
Higgins  V.  Moore,  472. 
Higgins  V.  Railroad  Co.,  533. 
Hilliker  v.  Farr,  589. 
Hill  V.  Davis,  261. 
Hill  v.  Winsor,  210. 


Hinckley  v.  Tittsburgh.  322. 

Hine  v.  Manhattan  R.  Co.,  659. 

Hiues  V.  Dry  Dock,  149. 

Hinton  v.  Sparkes,  179. 

Hirte  v.  E.  W.  Ry.  Co.,  562. 

Hoadley  v.  Northern  Tram.  Co.,  421. 

Hoagland  v.  Moore,  838. 

Hoaglaud  v.  Segur,  158. 

Hoag  v.  Railroad  Co.,  215,  21G,  217. 

Hobson  V.  Todd,  5. 

Hochester  v.  De  la  Tour,  234.  312, 

338,  339,  370.  371,  372,  373. 
Hocking  v.  Windsor,  120, 145. 
Hogan  v.  Cregan,  565. 
Holbrook  v.  Toby,  153. 
Holden  v.  X.  Y.  C.  R.  R.  Co.,  483. 
Holland  &  B.  Co.  v.  Nixon,  186. 
Holmes  v.  Jones,  520,  094. 
Homer  v.  Perkins,  538. 
Hopevale  Electric  Co.  v.   E.  S.  B. 

Co.,  27. 
Hopkins  v.  Railroad  Co.,  132. 
Hopple  V.  Higbee,  643. 
Horn  V.  Chandler,  39. 
Hough  V.  Railway  Co.,  128. 
Houston  E.  &  Tel.  Co.  v.  Davidson, 

576. 
Howard  v.  Crowther,  94. 
Howard  v.  Manufacturing  Co.,  47. 
Howell  V.  Coupland,  275. 
Howe  Machine  Co.  v.  Bryson,  122. 
Howe  v.  Newmarch,  398. 
Howland  v.  Day.  639. 
Howell  V.  Goodrich,  495. 
Hoy  V.  Gronoble,  364. 
Hoyt  V.  Danbury,  141. 
Huddleson  v.  Borough,  674. 
Hughes  v.  Auburn,  450. 
Huling  v.  Henderson,  142. 
Hunt  v.  Bennett,  532. 
Hunt  v.  Dowman,  3. 
Hunt  V.  Missouri,  K.  &  T.  R.  R.  Co., 

420. 
Hunt  V.  Silk,  279. 
Huntington  v.  Attrill,  670. 
Huntington  v.  R.  R.  Co.,  369. 
Huntingdon  R.  R.  Co.  v.  English, 

629. 


zu 


TABLE  OF  CASES  CITED. 


[The  references  are  to  the  pages.] 


Hurd  V.  Hubbell,  409. 

Hustou  V.  Freeiuausburgh,  415. 

llutcheis  V.  Cedar  Kapids,  121. 

Ilutcbins  V.  Hutcbins,  02. 

Hutcbius  V.  Muun,  000. 

Hutcbiusoii  V.  Stern,  512. 

Illinois  C.  R.  Co.  v.  Byrne,  122. 

Illinois  C.  R.  Co.  v.  Cole,  121. 

Ingram  v.  Lawson,  190. 

In  re  Crocket,  94. 

In  re  Haensell,  94. 

Int.  Ry.  Co.  v.  Nicholson,  478. 

Ireland  v.  Elliott,  035. 

Irwin  .V.  Solde,  404. 

Isaacs  V.  Da  vies,  377. 

Isaacs  V.  Railroad  Co.,  533. 

Ives  V.  Carter,  540. 

Jkckson  V.  Baker,  162. 

Jackson  v.  Pesked,  4. 

Jacoby  v.  Stark,  550, 

Jacobs  V.  Hoover,  688. 

Jacobs  V.  Third  Ave.  R.  R.  Co.,  401. 

James  v.  Allen  Co.,  378. 

James  v,  Morey,  685. 

Jamieson  v.  K.  C.  R.  Co.,  069. 

Jaquith  v.  Hudson,  180. 

Jennison  v.  Walker,  595. 

Jerome  v.  Ross,  6. 

Jerome  v.  Smith,  081,  082. 

Jewell  V.  R.  R.  Co.,  000. 

Joch  V.  Dankwardt,  109. 

Johnson  v.  Allen,  142. 

Johnson  v.  Arnold,  363. 

Johnson  v.  Holyoke,  644. 

Johnson  v.  Jenkins,  560. 

Johnson  v.  Macdonald,  259. 

Johnson  v.  McKee,  637. 

Johnson  v.  St.  Paul  Co.,  416. 

Johnson  v.  Strong.  074. 

Johnson  v.  Wells.  Fargo  &  Co.,  110. 

Johnson  v.  W.  U.  Tel.  Co.,  581. 

Jones  V.  Binford,  163. 

Jones  V.  Boyce,  114,  213. 

Jones  v.  Gooday,  199. 

Jones  V.  Jones,  376. 

Jones  V.  King.  27. 

Josling  V.  Kingsford,  295. 

Judy  V,  Sterrett,  664. 


Kaufman  v.  Manufacturing  Co.,  227, 

Kavanagh  v.  Barber,  502. 

Keeue  v.  Lizardi,  129. 

Keller  v.  Paine,  483,  659. 

Kellogg  V.  Railway  Co.,  214. 

Kelly  V.  Partington,  200. 

Kemp  V.  Ice  Co.,  161,  162. 

Kennon  v.  Gilmer,  121,  130. 

Kerrigan  v.  R.  R.,  630. 

Kettle  V.  Hunt,  196. 

Keystone  Pub.  Co.  v.  Roman,  381. 

Kiflf  V.  Youmans,  635. 

Kilham  v.  Ward,  4, 

Kimberly  v.  Patchin,  471. 

King  V.  Griffin,  120. 

King  V.  Root,  532, 

King  V.  Steiren,  365,  368. 

Kingsland  v.  Mayor,  599. 

Kingsley  v.  Sauer,  492. 

Kinney  v.  Crocker,  51. 

Kinports  v.  Breon,  360. 

Kirksey  v.  Jones,  130. 

Klein  v.  Thompson,  95. 

Kleiner  v.  R.  R.  Co.,  218,  667. 

Kline  v.  Railroad,  679. 

Kloths  V.  Hess,  514. 

Kniffin  v.  McConnell,  559. 

Knowlden  v.  Printing  Co.,  525. 

Knoxville  Traction  Co.  v.  Lane,  397. 

Kountz  V.  Citizens  Oil  Co.,  609. 

Krumm  v.  Beach,  540,  542. 

Kunkle  v.  Wberry,  186. 

Laidlow  v.  Sage,  218. 

Lahr  v.  Met.  El.  R.  R.,  189. 

Lake  Shore,  etc.  R,  R.  Co.  v.  Miller, 

424. 
Lamb  v.  Walker,  43. 
Lanioreaux  v.  Rolfe,  37. 
Lamos  v.  Snell,  516, 
Lance  v,  Apgar,  27. 
Land  Co.  v.  R.  R.  Co.,  289. 
Landreaux  v.  Bell,  398. 
Langfort  v.  Tiler,  333. 
Langridge  v.  Levy,  112. 
Lansing  v.  Dodd,  158. 
Larrabee  v.  Badger,  307. 
Lathers  v.  Wyman,  486. 


TABLE  OF  CASES  CITED. 


XIU 


[The  references  are  to  the  pages.] 


Law  V.  Local  Board  of  Redditch, 

158. 
Lawrence  v.   Metropolitan  R.   Co., 

659. 
Learock  v.  Paxson,  488. 
Leavitt  v.  Cutler,  564. 
LeBaron  v.  Joslin,  424. 
Lee  V.  City  of  Burlington,  120. 
Lee  V.  Woolsey,  634. 
Lee  V.  Publishers,  685. 
Legge  V.  Harlock,  158. 
Leggett  V.  Ins.  Co.,  178. 
Leggott  V.  Gt.  N.  Ry  Co.,  438. 
Lehman  v.  Railroad  Co.,  109. 
Leigh  V,  Pater  son,  67. 
Leonard  v.  Allen,  515,  516. 
Levy  V.  Langridge,  197. 
Levy  V.  Lord  Herbert,  367. 
Lewis  V.  Ins.  Co.,  80. 
Lewis  V.  Greider,  304. 
Lewis  V.  N.  P.  R.  Co.,  121. 
Lewis  V.  Peake,  290. 
Lincoln  v.  Claflin,  647. 
Lincoln  v.  Hapgood,  4. 
Lincoln  v.  Railroad  Co.,  220,  651. 
Lincoln  Shoe  Co,  v.  Sheldon,  579. 
Linf  ord  v.  Lake,  634. 
Ling  v.  Malcom,  488. 
Linn  v.  Duquesne,  120, 121. 
Linnex  v.  Bonfield,  534. 
Linsley  v.  Bushnell,  135. 
Lippincott  v.  Souder,  523. 
Lipp  v.  Otis,  449. 
Little  V.  Banks,  161,  162,  163. 
Littlewood  v.  Mayor,  etc.,  438,  440. 
Liverpool  Co.  v.  Phenix,  128. 
Lobdell  V.  Stowell,  474. 
Lock  V.  Furze,  241. 
Loder  v.  Kepule,  629. 
Loewenthal  v.  Streng,  688. 
Lombard  v.  Lenox,  460,  525. 
'  Long  V.  Booe,  555. 
Long  V.  Pruyn,  360. 
Lord  V.  Thomas,  358. 
Losee  v.  Buchanan,  520. 
Lou.  &  Nash.  R.  R.  Co.  v.  Ballard, 

399. 
Louisville  R.  R.  Co.  v.  Hine,  402. 


Louisville  R.  Co.  v.  Ryan,  660. 

Lovatt  V.  Hamilton,  259. 

Lowe  V.  Peers,  1.53. 

Lowe  V.  Ring,  511. 

Lumley  v.  Gye,  199. 

Luse  V.  Jones,  614. 

Lumber  Co.  v.  Wilmore,  614. 

Lynch  v.  R.  R.  Co.,  413,  530,  532, 

677. 
Lynde  v.  Thompson,  153. 
Machine  Co.  v.  Bryson,  225. 
Mack  v.  Patchin,  241. 
Mac-Lean  v.  Dunn,  319. 
Magagnos  v.  R.  R.,  146. 
Magee  v.  La  veil,  172. 
Maher  v.  Wilson,  27. 
Mahoney  v.  Belford,  514. 
Mahoney  v.  Dankwart,  120. 
Malecek  v.  R.  R.  Co.,  399. 
Mali  V.  Lord,  533. 

Malone  v.  City  of  Philadelphia,  158. 
Mann,  Boudoir  Co.  v.  Dupre,  218. 
Manufacturing  Co.  v.  Fiske,  129. 
Mapes  V.  Wicks,  517. 
Markman  v.  Jaudon,  475,  619,  623, 

624,  629. 
Marks  v.  Jacobs,  681. 
Marks  v.  L.  I.  R.  R.  Co.,  413. 
Marlow  v.  S.  R.,  145. 
Martin  v.  Atkinson,  685. 
Martin  v.  Bradley,  433. 
Martin  v.  Payne,  547. 
Mary  Clark's  Case,  437. 
Maryland  D.   &  R.  Co.  v.   Brown, 

121. 
Marzetti  v.  Williams,  5,  27. 
Mason  v.  Decker  319. 
Mason  v.  Hawes,  135. 
Mason  v.  Hill,  6,  7,  8. 
Masters  v.  Town  of  Warren,  134. 
Mathews  v.  Coe,  619,  623. 
Mathews  v.  Tarry,  651,  631. 
Matter  of  Brooklyn  E.  R.  R.,  592. 
Matter  of  City  of  N.  Y.,  250. 
Matter  of  Deering,  598. 
Matter  of  Furman  St.,  612. 
Matter  of  North  River,  598. 
Matter  of  N,  Y.  C.  R.  R.,  591. 


XIV 


TABLE  OF  CASES  CITED. 


[The  references  are  to  the  pages.] 


Matter  of  N.  Y.  L.  &  W.,  591. 
Matter  of  Thoiiii)son,  070. 
Matter  of  Uuiou  Village,  590. 
Matter  of  Utica  R.  R.,  590. 
Mattice  v.  Wilcox,  13S. 
Maunder  v.  Veun,  547. 
Mayuard  v.  Berkeley,  G34. 
Mayor  of  Lyun  v.  Mayor  of  Lon- 

dou,  2. 
Meagher  v.  Driscoll,  105,  121,  130. 
Mellick  V.  R.  R.,  506. 
Melone  v.  Sierra  R.  R.,  122. 
Mellor  V.  Spatemau,  4. 
Menagh  v.  Whitwell,  315. 
Mentzer  v.  Tel.  Co.,  572. 
Merrick  v.  Braiuard,  452. 
M.  E.  R.  R.  V.  Harby,  227. 
Merrills  v.  Manufacturing  Co.,  135. 
Metz.  V.  St.  R.  R.  Co.,  60. 
Meyer  v.  Houck,  683. 
Michaels  v.  N.  Y.  C.  R.  Co.,  421. 
Michalwait  v.  W.  U.  Tel.  Co.,  576. 
Michigan  C.  R.  Co,  v.  Burrows,  421. 
Mihill's  Co.  V.  Day,  224. 
Milage  v.  Woodward,  358. 
Millard  v.  Brown,  532. 
Miller  v.  Gas  Co.,  120. 
Miller  v.  King.  401. 
Miller  v.  Mariner's  Church,  71,  376. 
Mill  V.  E.  Co.  V.  Anderson,  679. 
Milliken  v.  Long,  550. 
Milwaukee  R.  R.  v.  Arms,  142. 
Mine  Supply  Co.  v.   Columbia   M, 

Co.,  121. 
Minn.  R.  Co.  v.  Gluck,  660. 
Mixer  v.  Howarth,  300. 
M'Lean  v.  Dunn,  67. 
M'Mahon  v.  Field.  223. 
Mockbee  v.  Gardner,  278. 
Monday  Mfg.  Co.  v.  R.  R.,  601. 
Moody  V.  Brown,  337. 
Moody  V.  Leverich,  378. 
Moore  v.  City  of  Kalamazoo,  33. 
Moore  v.  Met.  St.  Ry.,  415. 
Moore  v.  Railroad,  398. 
Morgan  v.  S.  P.  Co.,  4.50. 
Morley  v.  Dunbar,  635. 
Morrison  v.  Davis,  418,  420. 


Morrison  v.  Lawrence,  121. 

Morris  v.  Supplel,  360. 

Morse  v.  Hutchius,  292,  540,  541. 

Morse  v.  Shaw,  538. 

Morss  V.  Gleason,  315. 

Moth  V.  Danforth,  604. 

Mott  V.  Ice  Co.,  532. 

Mott  V.  Mott,  162. 

Moulton  V.  Trask,  335. 

Mowry  v.  Smith,  634. 

M.  &  St.  P.  R.  R.  V.  Kellogg,  214. 

Muhlker  v.  Harlem  R.  R.  Co.,  18. 

Muldoon  V.  Lynch,  158. 

Mullaly  V.  Austin,  37. 

Muller  V.  Eno,  297. 

Murphy  v.  Hoobs,  142. 

Murphy  y.  McGraw,  90. 

Murphy  v.  Railroad  Co.,  135,  445. 

Murray  v.  Jennings,  542. 

Musgrave  v.  Beckendorff,  629. 

Musick  V.  Latrohe,  120. 

Myrick  v.  Railroad  Co.,  128. 

My  Laundry  Co.  v.  Schmiling,  654. 

McAllister  v.  Detroit  Free  Press  Co., 

521. 
McAlmont  v.  McClelland,  548. 
McBride  v.  McLoughlin,  688. 
McCaffrey  v.  Thomas,  534. 
McCarthy  v.  DeArmit,  130. 
McCarthy  v.  Niskern,  142. 
McConnell  v.  Corona,  190. 
McConnel  v.  McKibbe,  495. 
McCool  V.  Mahoney,  674. 
McCue  V.  Klein,  51. 
McDermott  v.  Severe,  122. 
McDonald  v.  Mallory,  438. 
McDonald  v.  Scaife,  489. 
McDonald  v.  Walter,  685. 
McElligott  V.  Randolph,  447. 
McFadden  v.  Thompson,  464. 
McGarrahan  v.  R.  R.,  9.5. 
McGarr  v.  Worsted  Mills,  415. 
McGinness  v.  Mo.  Pac.  Ry.  Co.,  399. 
Mclntyre  v.  N.  Y.  C.  R.  R.  Co.,  50, 

220. 
McKee  v.  Judd.  437. 
McLean  Co.  v.  Long,  488. 
McMahon  v.  Dubuque,  478. 


TABLE  OP  CASES  CITED. 


XV 


[The  references  are  to  the  pages.] 


McMahon  v.  Railroad  Co.,  302. 

McNamara  v.  King,  97. 

McNamara  v.  Clintonville,  415. 

McNaught  V.  Dodson,  307. 

McNeill  V.  Crucible  S.  Co.,  122. 

McNeil  V.  Lyons,  150,  685. 

Nash  V.  Sharpe,  413,  677. 

Nebraska  City  v.  Campbell,  220. 

Needham  v.  Grand  T.  R.  R.  Co.,  441. 

Negley  v.  Farrou,  G81. 

Nelson  v.  Churchill,  464. 

Nelson  v.  Plumpton  Co.,  368. 

Newburgh  &  C.  Turnpike  v.  Mil- 
ler, 6. 

Newman  v.  R.  R..  591,  592. 

Nichol  V.  Godts,  295. 

Nichols  V.  Brabazon,  190. 

Nichols  V.  Dunphy,  674. 

Nicklin  v.  Williams,  42,  43. 

Nieto  V.  Clark,  399. 

Niver  v.  Rossman,  162. 

N.  J.  S.  &  C.  F.  Co.  V.  B.  of  Educa- 
tion, 27. 

Noble  V.  Am.  T.  C.  Co.,  359. 

Nolan  V.  Traber,  681. 

Noonan  v.  Orton,  94. 

Noonan  v.  Pardee.  464. 

Norfolk  R.  R.  Co.  v,  Spraety,  190. 

Normile  v.  Wheeling  T.  Co.,  122. 

Norris  v.  Casel,  637. 

North  American  Co.  v.  Morrison, 
390. 

North  C.  S.  Ry.  Co.  v.  Biddie,  589. 

North  C.  Railway  Co.  v.  Cotton.  97. 

North  Chicago  R.  Co.  v.  Wrixon, 
688. 

Norton  v.  Warner,  551. 

Norway  Plains  Co.  v.  Railroad,  419. 

Nurse  v.  Barns,  195. 

N.  Y.  R.  R.  Co.  V.  Ansonia,  646, 
647. 

N.  Y.  S.  Moniter  Milk  Pan  Co.  v. 
Remington,  323. 

Nutting  V.  C.  R.  R.  R.,  419. 

Nysewander  v.  Louman,  542. 

O'Conner  v.  Forster,  604. 

Oehlhof  V.  Soloman,  545. 

Ogden  V.  Claycomb,  637. 


Old  Col.  R.  R.  V.  Evans,  250. 

Old  Col.  R.  R.  V.  Miller,  647. 

Oliver  v.  Town  of  LaValle,  212,  214. 

Olmstead  v.  Burke,  80. 

Olwell  V.  Spoors,  145. 

Onthank  v.  L.  S.  R.  R.,  595. 

Optenburg  v.  Skelton,  359. 

Osier  V.  Walton,  512. 

Ottenot  V.  N.  Y.  L.  &  W.  Ry.  Co., 

496. 
Oviat  V.  Pond,  409,  646. 
Owen  V.  O'Reilly,  27. 
Owen  V.  Routh,  624,  629. 
Owens  V.  Railway  Co.,  98. 
Pacific  Co.,  V.  Alaska  Co.,  464. 
Page  V.  Parker,  542. 
Painter  v.  Stahley,  464. 
Palmer  v.  Cook,  555. 
Palmer  v.  Crook,  551. 
Palmer  v.  Derby,  121. 
Palmer  v.  Phila.  B.  &  W.  R.  R.,  142. 
Palmeri  v.  Manhattan  R.  Co.,  400. 
Parker  v.  Griswold,  20. 
Parker  v.  Moulton,  538,  539. 
Parke  v.  Seattle,  659. 
Parkinson  v.  Lee.  278. 
Parmelee  v.  Baldwin,  52. 
Parmenter  v.  Fitzpa  trick,  483. 
Parrott  v.  Railroad  Co.,  409. 
Pasley  v.  Freeman,  111,  112. 
Passinger  v.  Thorburn,  323. 
Patterson  v.  Hayden,  565. 
Patterson  v.  Patterson,  461. 
Paulmier  v.  Erie  Railway  Co.,  428. 
Paul  V.  Slason,  27. 
Peacock  v.  Oaks,  584. 
Peat  V.  Ry.  Co.,  562. 
Peek  V.  Traylor.  551. 
Peeters  v.  Opie.  367. 
Pelardis   v.    Journal    Printing  Co., 

458,  527. 
Penn.  R.  R.  v.  Allen.  120. 
Penn.  Co.  v.  Bray.  403. 
Penn.  R.  R.  Co.  v.  Connell,  403. 
Penn.  Coal  Co.  v.  Files,  190. 
People  V.  Clark.  565. 
People  v.  Sauires,  565. 
People  V.  Kerr,  502. 


XVI 


TABLE  OF  CASES  CITED. 


[The  references  are  to  the  pages.] 


People  V.  Gibbs,  433. 

People  ex  rel.  v.  Tioga  Com.  Pleas, 

435,  43G,  437,  438. 
Perkins  v.  Vaughan,  634. 
Peters  B.  &  L.  Co.  v.  Lesh,  493. 
Peters  v.  Lake,  97. 
Peterson  v.  Drew,  381. 
Petrie  v.  Lane,  228. 
Phelps  V.  Hunt,  618. 
Philbrook  v.  Burgess,  375. 
Phillips  V.  Mann,  674. 
Phillips  V.  Town,  600. 
Philpotts  V.  Evans,  372. 
Pierce  v.  Conners,  441. 
Pierce  v.  Woodward,  38. 
Pill  V.  B.  H.  R.  R.  Co.,  412. 
Pinches  V.  Church,  356. 
Pinder  v.  Wadsworth,  5. 
Pinkerton  v.  Manchester  R.  R.,  624. 
Pittsburgh  R.  R.  v.  Moore,  228. 
Pittsburgh  S.  Co.  v.  W.  P.  S.  Co., 

359. 
Planche  v.  Colburn,  339. 
Piatt  V.  Brown,  135. 
Platz  V.  McKean,  416. 
Pollard  V.  Lyon,  514. 
Pollen  V.  LeRoy,  264,  304,  317,  318. 
Pollock  V.  Gantt,  80,  130. 
Poposkey  v.  Munkwitz,  236. 
Porter  v.  Wormser,  319. 
Postal  Tel.  v.  Lathrop,  570. 
Post  V.  Railway  Co.,  449. 
Poulton  V.  Lattimore,  279,  295. 
Powers  V.  Cary,  515,  517. 
Powers  V.  Council  Bluffs,  454,  455. 
Powers  V.  Ware,  38. 
Poulton  V.  Lattimore,  279,  295. 
Paed  V.  Graham,  56. 
Predmore  v.  Consumers  L.  &  P.  Co., 

145. 
Preston  v.  Neale,  255. 
Prettywian  v.  Williamson,  552. 
Prentiss  v.  Shaw,  632.  637. 
Price  V.  Jenkins,  233. 
Price  V.  Price,  435. 
Printz  V.  People,  614. 
Pritchard  v.  Hewitt,  685. 
Pryor  v.  Foster,  540. 


Publishing  Co.  v.  Kahn,  146. 

Pugh  V.  Ry.  Co.,  113. 

Pullman  Palace  Car  Co.  v.  Barker, 

214. 
Pullman's  Palace  Car  Co.  v.  King, 

401. 
Pumpelly  v.  Phelps,  241,  242. 
Purcell  V.  Railroad  Co.,  108,  116. 
Puritan  C.  Co.  v.  Clark,  359. 
Putman  v.  Glidden,  254. 
Quarles  v.  George,  71. 
Quill  V.  So.  Pac.  Co.,  451. 
Rabe  v.  Coal  Co.,  464. 
Railroad  Co.  v.  Allen,  449. 
Railroad  Co.  v.  Babcock,  520. 
Railroad  v.  Baches,  451. 
Railroad  v.  Barrow,  450. 
Railroad  v.  Blocher,  398. 
Railroad  v.  Carr,  122,  688. 
Railroad  Co.  v.  Deloney,  403. 
Railroad  v.  Derby,  398. 
Railroad  Co.  v.  Dickerson,  403. 
Railroad  v.  Finney,  398. 
Railroad  v.  Garvey,  601. 
Railroad  Co.  v.  Goben,  403. 
Railroad  v.  Gunderson,  450. 
Railroad  Co.  v.  Hale,  164. 
Railroad  Co.  v.  Hardy,  227. 
Railroad  v.  Hinds,  398. 
Railroad  v.  Keith,  645. 
Railroad  Co.  v.  Lockwood,  128. 
Railroad  Co.  v.  Reeves,  420. 
Railroad  Co.  v.  Reichert,  181. 
Railroad  Co.  v.  Trich,  217. 
Railroad  v.  Johnson,  688. 
Railroad  v.  Mount,  416. 
Railroad  v.  Musa,  688. 
Railroad  v.  Vandiver,  398. 
Railroad  v.  Wallace,  647. 
Railroad  v.  Woolridge,  451. 
Railroad  v.  Wren,  353. 
Railway  Ad.  Co.  v.  Standard  Co., 

358. 
Railway  Co.  v.  Arm,  129, 130. 
Railway  Co.  v.  Beckwith,  129. 
Railway  Co.  v.  Bohn,  424. 
Railway  Co.  v.  Dunn,  132. 
Railway  Co.  v.  Earl,  691. 


TABLE  OF  CASES  CITED, 


ZYU 


[The  references  are  to  the  pages.] 


Railway  Co.  v.  Eberle,  656. 

Railway  Co.  v.  Godkin,  691. 

Railway  Co.  v.  Hall,  692. 

Railway  Co.  v.  Harper,  691. 

Railway  Co.  v.  Harris,  129, 130. 

Railway  Co.  v.  Humes,  129. 

Railway  Co.  v.  Nicholson,  478,  614. 

Railway  Co.  v.  Quigley,  129, 130, 139 

Railway  Co.  v.  Smith,  656. 

Railway  Co.  v.  Syfan,  692. 

Randall  v.  Raper,  296. 

Rand  v.  R.  R.  Co.,  624. 

Ray  V.  Traction  Co.,  401. 

Redmond  v.  Am.  Mfg.  Co.,  630. 

Reed  v.  City  of  Detroit,  33. 

Reed  v.  McConnell,  323. 

Reed  v.  Randall,  264. 

Reed  v.  Spaulding,  421. 

Reed  v.  State,  496. 

Regan  v.  Railroad  Co.,  409,  646,  647. 

Regina  v.  Baker,  507. 

Regina  v.  James,  508. 

Regina  v.  Oxford,  508. 

Regina  v.  St.  George,  508. 

Remelee  v.  Hall,  37,  375. 

Renihan  v.  Wright,  121,  458. 
Renner  v.  Canfield,  110. 
Revill  V.  Salterfit,  547. 
Rhinehart  v.  Whitehead,  674. 
Rice  V.  Stone,  93. 
Richardson  v.  Hine,  635. 
Richardson  v.  Woehler,  154. 
Richmond  R.  R.  v.  Elliott,  227. 
Richmond  v.  Fisk,  512. 
Ridenhour  v.  K,  C.  R.  R.,  190. 
Ripley  v.  McClure,  372. 
Ritchie  v.  Talcott,  492. 
Robertson  v.  Parks,  63. 
Robinson  v.  Centenary  Fund,  186. 
Robinson  v.  Rupert,  635. 
Robinson  v.  Wiley,  93. 
Roche  V.  Redington,  146, 
Rogers  v.  Spence,  94. 
Romaine  v.  VanAllen,  475,  629. 
Roper  V.  Johnson,  572. 
Ropes  V.  Upton,  153. 
Rose  V.  Buckett,  94. 
Rose  V.  Mitchell,  551. 


I  Rosenberger  v.  Marsh,  227. 

Rosenkrans  v.  Barker,  129. 

Ross  V.  G.  N.  R.  R.,  415. 

Roth  V.  Taysen,  642. 

Rounds  V.  Railroad  Co.,  533. 

Rowbotham  v.  Wilson,  42. 

Rowe  V.  Railway  Co.,  615. 

Rowley  v.  Loudon  &  N.  Y.  R.  R.,  190. 

Royalton  v.  Turnpike  Co.,  71,  72. 

Rudd  V.  Rounds,  551. 

Rueping  v.  R.  R.,  146. 

Russell  V.  Nicoll,  250. 

Russell  V.  Suubury,  438. 

Russell  V.  Wash.  Post.,  527. 

Rust  V.  Eckler,  297. 

Saladin  v.  Mitchell,  307. 

Sands  v.  Taylor,  333. 

Sanders  v.  Stuart,  567. 

Sanford  v.  Peck,  478. 

Santa  Ana  v.  Harlin,  659. 

Saunders  v.  Newman,  8. 

Savage  v.  Chicago  R.  Co.,  416. 

Savill  V.  Roberts,  62. 

Sayre  v.  Sayre,  643. 

Schell  V.  Plumb,  37. 

Schenkel  v.  P.  &  B.  T.  Co.,  122. 

Schlemmer  v.  Railroad,  450. 

Schmidt  v.  Zahendorf,  456. 

Schorn  v.  Berry,  ,552. 

Schrandt  v.  Young,  228. 

Schrimpf  v.  Manufacturing  Co.,  154. 

Schumaker  v.  Heinemann,  2,27. 

Scott  V.  Donald,  142. 

Scott  V,  Montells,  185. 

Scott  V.  Shepherd,  211,  218. 

Scripps  V.  Reilly,  521. 

Scullane  v.  Kellogg,  95. 

Seger  v.  Town  of  Barkhamsted,  134. 

Seifert  v.  W.  M.  Tel.  Co.,  581. 

Selleck  v.  French,  646. 

Selleck  v.  Janesville,  415. 

Sell  V.  Ward,  478. 

Sellman  v.  Wheeler,  674. 

Seymour  v.  Greenwood,  398. 

Shanks  v.  Whitney,  538,  542. 

Shannon  v.  Comstock,  71. 

Shano  V.  Bridge  Co.,  120. 

Shaw  V.  Nudd,  71. 


XVlll 


TABLE  OF  CASES  CITED. 


[The  references  are  to  the  pages.] 


Shay  V.  Thompson,  51. 

Shelbouruo  v.  Law  I.  Co.,  228. 

Shopard  v.  K.  K.  Co.,  401,  403. 

Shepherd  v.  Temple,  27;s. 

Shepperd  v.  Ihiuipton,  71. 

Sherley  v.  Billings.  :>!i!). 

Sherman  v.  Rawsou.  5U0. 

Shury  v.  Piggot,  S. 

Sibley  V.  Rider,  375. 

Sigafus  V.  Porter,  546. 

Silsbury  v.  McCoou,  460. 

Silshy   Manufg.   Co.    v.   State,  466, 

496. 
Simonln  v.R.  R.  Co.,  413,  677. 
Simone  v.  R.  I.  Co.,  122. 
Siordet  v.  Hall,  200. 
Simpson  v.  Penn.  R.  R.  Co.,  122. 
Six  carpenters  Case,  27. 
S.  K.  R.  R.  Co.  V.  Rice,  403. 
Slater  v.  Rink,  495. 
Slavin  v.  State,  416. 
Slingerland  v.  E.  J.  W.  Co.,  146. 
Slingsby  v.  Barnard,  15,  16. 
Sloan  V.  Edwards,  673. 
Smethurst  v.  Woolston,  604. 
Smith  V.  Bolles,  540,  541,  542. 
Smith  V.  Borough  of  E.  M.,  122. 
Smith  V.  Green,  360. 
Smith  V.  Griffith,  607. 
Smith  V.  Holcomb.  130. 
Smith  V.  Johnson  &  Co.,  114. 
Smith  V.  Milburn,  565. 
Smith  V.  Railway  Co.,  615,  667. 
Smith  V.  Simon,  51. 
Smith  V.  State,  565. 
Sneesby  v.  Railway  Company,  103. 
Snow  V.  Provincetown,  425. 
Snow  V.  Pulitzer,  121,  237,  238. 
SoRelle  v.  W.  M.  Tel.  Co.,  581. 
Southard  v.  Rexford.  559. 
Southern  K.  R.  R.  Co.  v.  Hinsdale, 

398. 
Southern  R.  R.  v.  Jordan,  142. 
South  Park  v.  Dimlevy,  647. 
S.  P.  Co.  V.  Tomlinson,  691. 
Speck  V.  Gray.  555. 
Spencer  v.  Tilden.  162. 
Sperry  v.  Seidel,  142. 


Sperry  v.  Miller,  520. 

Spicer  v.  Waters,  486. 

Spohn  V.  Mo.  P.  R.  R.  Co.,  399. 

Sproul  V.  Huston,  27. 

Squire  v.  W.  U.  Tel.  Co.,  577,  581. 

St.  Albans  v.  Ellis,  153. 

Staal  V.  R.  R.  Co.,  60. 

Sterling  v.  Turner,  3. 

Startup  V.  Cortazzi,  624. 

State  V.  Brassfield,  565. 

State  V.  Burnham,  51. 

State  V.  Davis,  27. 

State  V.  Glidden,  62. 

State  V.  Kreutzberg,  462. 

Street  v.  Laumier,  644. 

Stevens  v.  O'Neill,  531. 

Stevenson's  Case,  153. 

Stewart  v.  B.  &  C.  R.  R.  Co.,  399. 

Stewart  v.  Ripon,  212,  214. 

Steart  v.  Smith,  550. 

St.  J.  R.  R.  V.  Orr,  659. 

St.  Louis  R.  R.  V.  Biggs,  045. 

Stokes  v.  Stickney,  435. 

Stone  V.  Railroad,  93. 

Stone  V.  Varney,  515,  517. 

Story  Case,  593. 

Stout  V.  Wren,  51. 

Stowers  v.  Singer,  565. 

St.  Peter's  Church   v.   Beach,   135, 

509. 
Strand  v.  Railroad,  145. 
Strauss  v.  Meertief ,  377. 
Street  v.  Laumier,  644. 
Striegel  v.  Moore,  615. 
Strohm  v.  Railroad.  666. 
Stroud  v.  Smith,  142. 
Stuart  V.  Wilkins,  278. 
Sturgess  v.  Bissell,  483. 
Stutz  V.  Railroad  Co.,  458. 
Sullens  V.  Railway  Co.,  615. 
Sullivan  v.  Boston  L.  R.  R.,  416. 
Sullivan  v.  Old  Colony  R.  Co.,  122. 
Summerfield  v.  W.  U.  Tel.  Co.,  121, 

458,  459. 
Suther  v.  State,  565. 
Suydam  v,  Jenkins,  476,  484,  623, 

029. 
Swift  V.  Barnes,  71. 


TABLE  OP  CASES  CITED. 


XIX 


[The  references  are  to  the  pages.] 


Swift  V.  Broyles,  27. 

Swift  V.  Dickeriuau,  514. 

Talbott  V.  R.  R.,  121. 

Tappen  v.  State,  630. 

Tarbell  v.  West,  317. 

Taylor  v.  Bradley,  92,  227. 

Taylor  v.  Caldwell,  (i41. 

Taylor  v.  Church,  532. 

Taylor  v.  Guest,  546. 

Taylor  v.  Monroe,  52. 

Telegraph  Co.  v.  Edsall,  572. 

Telegraph  Co.  v.  Wood,  110. 

Teller  v.  B.  &  R.  Co.,  464. 

Terry  v.  Jewett,  450. 

Terry  v.  Wheeler,  471. 

Trewllliger  v.  Wands,  514,  523. 

Texas  Pac.  R.  R.  Co.  v.  James,  402. 

Thayer  v.  South  wick,  93. 

The  Amiable  Nancy,  75, 129. 

The  C.  R.  I.  &  P.  R.  R.  Co.  v.  Mof- 

fitt,  495. 
The  Golden  Gate,  129. 
The  State  Rights,  129. 
Thomas  v.  Durant,  238. 
Thomas  v.  Union  Ry.  Co.,  413. 
Thompson  v.  Alger.  252. 
Thompson  v.  Boston,  659. 
Thompson  v.  Newell.  27. 
Thompson  v.  Wood.  369. 
Thorn  v.  Knapp,  559,  560. 
Thrall  v.  Knapp.  635. 
Tice  V.  Munn,  120. 
Tiffany  v.  Lord,  483. 
Tift  V.  Culver,  532. 
Tillotson  V.  Chutham.  532. 
Tindall  v.  Bell,  200,  644. 
Tingley  v.  Times-Mirror  Co.,  142. 
Titley  v.  Enterprise  S.  Co.,  360. 
Towlinson  v.  Derby,  52. 
Towers  v.  Osborne,  331,  3.32. 
Town  of  Troy  v.   Cheshire  R.  R.. 

454.  496. 
Tozer  v.  Railroad  Co.,  666. 
Tradesman  Co.  v.  S.  M.  Co.,  381. 
Trigg  V.  Railway  Co.,  .389. 
Tripp  V.  Thomas,  681. 
Trout  V.  Kennedy,  605. 
Troy  V.  B.  R.  R.  v.  Lee,  590. 


Trull  V.  Granger,  545. 

Tubbs  V.  VanKluk,  550,  663,  664. 

Tucker  v.  Henniker,  426. 

Turner  v.  B.  &  M.  R.  R.,  94. 

Turner  v.  Hearst,  514,  521. 

Turpil  V.  Lowe,  23. 

Tyler  v,  Wilkinson,  5,  7,  8. 

Tyler  v.  W.  U.  Tel.  Co.,  570. 

Tyson  v.  Booth,  634. 

Uline  V.  N.  Y.  C.  R.  R.  Co.,  189,  496. 

Uufried  v.  Railroad  Co.,  692. 

Union  Hardware  Co.  v.  Plume,  646. 

Union  Nat.  Bank  v.  Cross,  630. 

Unruh  v.  Taylor,  121. 

Uppington  v.  City  of  N.  Y.,  218. 

U.  S.  V.  Behan,  224,  355,  357. 

U.  S.  Tel.  Co.  V.  Gildersleeve,  568. 

V.  S.  V.  St.  Anthony  R.  R.,  464,  630. 

^'ail  V.  Reynolds,  540,  542. 

Van  Bergen  v.  Van  Bergen,  66. 

Vanderbuilt  v.  Turnpike  Co.,  532. 

Van  Ingen  v.  Star  Co.,  525. 

Van  Rensselaer  v.  Jewett,  647. 

Vicars  v.  Wilcocks,  296. 

Village  of  Johnsville  v.  Smith,  601. 

Vinal  V.  Core,  692. 

Voak  V.  Ry.  Co..  426. 

Vogel  V.  McAuIiffe,  145. 

Volkmar  v.  Third  Ave.  R.   R.  Co.. 

415. 
^'oltz  V.  Glackmar,  142.  .531,  639. 
Voorhees  v.  Earl,  280.  297. 
Vooth  V.  McEachen,  416. 
Vosburg  V.  Putney,  679. 
Wade  V.  Kalvfleisch,  435. 
Wade  V.  Leroy,  220. 
Waechter  v.  Second  Av.  T.  Co.,  450. 
Wakeman  v.  Manufg.  Co.,  226,  238. 

323.  325. 
Wakeman  v.  Wilbur,  502. 
Wald  v.  St.  L.  R.  Co..  421. 
Waldie  V.  R.  R.  Co.,  413,  677. 
Waldron  v.  Waldron,  551. 
Walker  v.  Erie  R.  R.  Co.,  88,  221, 

391. 
Walker  v.  Moore,  65. 
Walker  v.  Simmons  Mfg.  Co.,  145. 
Wales  V.  Pac.  E.  M.  Co.,  451. 


XX 


TABLE  OF  CASES  CITED. 


[The  references  are  to  the  pages.] 


Wallace  v.  Penn.  R.  R.,  122. 

Wallis  V.  Smith,  172,  173,  179. 

Wallis  V.  Warreu,  367. 

Walsh  V.  Railway  Co.,  389,  458. 

Waltou  V.  Fothergill,  199. 

Ward  V.  Building  Co.,  158,  162,  184, 

669. 
Ward  V.  Rich,  39. 
Wardrobe  v.  Stage,  129. 
Ward  V.  Smith,  197. 
Warner  v.  Publishing  Co.,  520,  521. 
Warner  v.  S.  Pac.  R.  R.,  146. 
Wartman  v.  Swindell,  27. 
Washburn  v.  Hubbard,  82. 
Wash.  &  G.  R.  Co.  v.  Patterson,  121. 
Waters  v.  Towers,  197, 199. 
Wat'son  V.  Brick  Co.,  31. 
Watson  V.  Bridge,  90,  645. 
Watson  V.  Moore,  517. 
Watson  V.  Russell,  186. 
Weaver  v.  Berwind,  630. 
Webb  V.  Oilman,  673. 
Webb  V.  Railroad,  121. 
Weber  v.  Railroad,  150. 
Webster  v.  Enfield,  335,  338. 
Webster  v.  Railroad,  190. 
Welch  V.  Durand,  135,  509. 
Weller  v.  Baker,  4,  26,  27. 
Wellman  v.  Minor,  415. 
Wells  V.  Association,  225. 
Wells  V.  Northampton  Co.,  496,  497. 
Wells  V.  Railroad,  142. 
Wetherell  v.  Julius,  94. 
Westfield  v.  Mayo,  654. 
W.  U.  Tel.  Co.  V.  Ferguson,  581. 
W.  U.  Tel.  Co.  V.  Gilstrap,  581. 
W.  r.  Tel.  Co.  V.  Hall,  581. 
W.  U.  Tel.  Co.  V.  Rogers,  459,  581. 
W.  U.  Tel.  Co.  V.  Smith,  146. 
Westwatee  v.  Grace  Church,  228. 
Weymouth  v.  Railway  Co.,  481. 
Wheeler  v.  Newhould.  472. 
Wheeler  v.  Townsend,  644. 
Whipple  V.Rich.  94. 
Whitefield  v.  Levy.  158. 
Whitford  v.  Panama  R.  R.  Co.,  435, 
437,  438,  439. 


Whiting  v.  Sullivan,  254. 

Whitney  v.  Milwaukee,  147,  685. 

White  V.  Miller,  80,  323. 

White  V.  Murtland,  97. 

White  V.  Webb,  646. 

Wilde  V.  Mahaney,  93. 

Wilkes  V.  Wood,  128,  510. 

Wilkinson  v.  N.  E.  Borough,  122. 

Wilkinson  v.  Verity,  371. 

Wilkins  v.  Day,  114. 

Williams  v.  Archer,  624. 

Williams  v.  McFadden,  542. 

Williams  v.  Morland,  4. 

Williams  v.  Thrall,  250. 

Williams  v.  Vance,  152. 

Willson  V.  Baltimore,  186. 

Wilson  V.  Bowen,  142. 

Wilson  V.  Davis,  608. 

Wilson  V.  Fitch,  521. 

Wilson  V.  Granby,  136. 

Wilson  V.  R.  R.  Co.,  403. 

Wilson  Sewing  Mach.  Co.  v.  Sloan, 

225. 
Wilson  V.  Wernwag,  120. 
Wilson  V.  Whitaker,  629. 
Wilson  V.  Young,  458,  636. 
Wineberg  v.  Du  Bois,  416. 
Winkler  v.  Racine  Co.,  381. 
Winnegar's  Administrator  v.  Cent 

Pass.  Ry.  Co.,  399. 
Winslow  Bros.  v.  Du  Puy,  360. 
Witherbee  v.  Meyer,  122,  237. 
Withers  v.  Reynolds,  338. 
Witmark  v.  R.  R.  Co.,  670. 
Wood  v.  Gunston,  683. 
Wood  V.  Ins.  Co.,  659. 
Wood  v.  Morewood,  467,  481. 
Woodruff  V.  Little.  428. 
Woeckner  v.  Erie  E.  M.  Co.,  122. 
Wolf  v.  Dietzsch,  360. 
Wolf  V.  Frank,  553. 
Wragg  V.  Mead.  250. 
Wright  V.  Bank  of  Metropolis,  680. 
Wright  V.  Falkner.  .378. 
Wright  V.  Haskell.  355. 
Wright  V.  Howard.  7. 
Wright  V.  Wilcox,  532. 
W.  U.  Tel.  Co.  V.  Hall,  567,  577. 


TABLE  OP  CASES  CITED. 


XXI 


W.  U.  Tel.  Co.  V.  Rogers,  459. 

Wyman  v.  Leavitt,  110. 

Wyman  v.  Robinson,  186. 

Yazoo  &  M.  V.  R.  Co.  v.  Millsaps 

421. 
Yeazel  v.  Alexander,  555. 
Yerkes  v.  N.  P.  R.  R.,  416. 
Yertore  v.  Wiswall,  438,  439,  441. 
Young  V,  Titwood,  659. 


[The  references  are  to  the  pages.] 

Young  V.  Harrison,  612. 


Young  V.  Marshall,  260. 
Young  V.  Spencer,  5. 
Young  V.  Telegraph  Co.,  115. 
Yundt  V.  Hartrunft,  554. 
Zabriskie  v.  Smith,  435,  438. 
Zillmer  v.  Kreutzberg,  462. 
Zimmerman  v.  Timmerman,  360. 


TABLE  OF  CONTENTS. 


PAGE 

I.  INTRODUCTION. 

General  Principles  and  Theory  of  Damages. 

1.  Injuria  sine  damno. 

Webb  V.  Portland  Manufacturing  Co 1 

2.  Damnum  absque  injuria. 

Thurston    v.   Hancock 11 

II.  CLASSIFICATION  OF  DAMAGES. 

1.  Nominal  Damages. 

Wood   V.   Waud 19 

Jewett  V.  Whitney 20 

Tufts   V.    Bennett 21 

Lowe  V.  Turpie 21 

The  Columbus  Company  Limited  v.  Clowes 25 

2.  Avoidahle  Damages. 

Clark  V.   Marsiglia 27 

Sullivan    v.    McMillan 29 

Zibbell  V.  City  of  Grand  Rapids 33 

3.  Compensatory  Damages. 

Allison  V.  Chandler 34 

Parker  v.  Russell 37 

Baltimore  and  Potomac  Railroad  v.  Fifth  Baptist  Church  40 

Darley  Main  Colliery  Co.  v.  Mitchell 41 

Lewis  V.  Hartford  Dredging  Co 44 

1)   Elements  of  Compensation. 

(1)  Loss  of  time. 

Leeds  v.  Metropolitan  Gas  Light  Co 48 

Lund   V.   Tyler 50 

Smith    V.    Whittlesey 51 

(2)  Earning  potver. 

Johnston  v.  Great  Western  Railway  Co 54 

(3)  Loss  of  wages. 

Walker  v.  City  of  Philadelphia 59 

Camparetti  v.  Union  Ry.  Co 59 

Wyman  v.  Deady 61 

(4)  Loss  of  profits. 

Masterton  v.  The  Mayor  of  Brooklyn 64 

Griffin  v.   Colver 73 

Brigham  v.  Carlisle 79 

xxiii 


Xxiv  TABLE  OF   CONTENTS. 

II.  CLASSIFICATION  OF  DAMAGES— Continued. 

Wright   V.   Mulvaney 82 

Bethel  &  Co.  v.  Salem  Improvement  Co 84 

Stevens  v.  Yale 85 

Weir  V.  Union  Railway  Co 86 

(5)  Expenses. 

Ellis  V.  Hilton 89 

Bernstein   v.   Meech 91 

a.  Physician's  fees. 

Sibley   v.   Mason 93 

Schmidt    v.    Kurrus 95 

(6)  Pain  and  suffering. 

Goodhart  v.  Pennsylvania  R.  R.  Co 98 

(7)  Mental  anguish. 

Canning   v.    Williamstown 101 

Victorian  Rys.  Com'rs  v.  Coultas 102 

Larson  v.  Chase 103 

Sloane  v.  Southern  California  Ry.  Co 105 

Mitchell  v.  Rochester  Ry.  Co 109 

Wilkinson   v.   Downton Ill 

Chappell  V.  Ellis 114 

Braun  v.  Craven 116 

Watson   V.   Dilts 118 

4.  Exemplary  Damages. 

Merest    v.    Harvey 123 

Goddard  v.  Grand  Trunk  Railway 124 

Lake  Shore  &  M.  S.  Railway  v.  Prentice 127 

Maisenbacker  v.  The  Society  Concordia 133 

Krug  V.  Pitass 137 

Haywood  v.  Hamm 140 

5.  Excessive  Damages. 

Huckle  V.  Money 142 

Peterson  v.  Western  Union  Telegraph  Co 144 

6.  Inadequate  Damages. 

Robinson  v.  Town  of  Waupaca 146 

Samuels  v.  N.  Y.  City  Ry.  Co 148 

Cornish  v.  North  N.  J.  Street  Railway  Co 149 

7.  Liquidated  Damages  or  Penalty. 

Keeble  v.  Keeble 150 

Smith  V.  Bergenren 153 

Tennessee  Manufacturing  Co.  v.  James 154 

Monmouth  Park  Assoc,  v.  Wallis  Iron  Works 156 

Curtis  v.  Van  Bergh 159 

Illinois  Cent.  R.  Co.  v.  Cabinet  Co 164 

Clydebank    Engineering  and    Shipbuilding   Company   v. 

Don  Jose  Ramos  Yzquierdo  y  Castaneda 166 

Pye  V.  British  Automobile  Comm'l  Ssmdicate  Limited..  170 


TABLE  OP   CONTENTS.  XXV 

II.  CLASSIFICATION  OF  DAMAGES— Continued. 

Kemble  v.  Farren 174 

Willson  V.  Mayor  of  Baltimore 176 

Caesar  v.  Rubinson 182 

8.  Prospective  Damages. 

Bowers  v.  Mississippi  &  R.  R.  Boom  Co .  .187 

Ceigler  v.  Hopper-Morgan  Co 188 

III.  DIRECT  AND  CONSEQUENTIAL  DAMAGE. 

Hadley  v.  Baxendale 191 

Dubuque  Wood  and  Coal  Assoc,  v.  Dubuque 203 

Lawrence  v.  Hagerman 205 

McHose  V.   Fulmer 207 

Brown  v.  Chicago,  Milwaukee  and  St.  Paul  Railway 209 

Wood  V.  Pennsylvania  R.  R.  Co 214 

IV.  CERTAINTY. 

1.  Contingent,  Remote  and  Speculative  Damages. 

Loker  v.  Damon 219 

Masterton  v.  Mount  Vernon 220 

Lilley  v.  Doubleday 221 

Hichhorn  v.  Bradley 224 

V.  DAMAGES  IN  ACTIONS  ON  CONTRACTS. 

1.  Contracts  relating  to  Real  Property. 

Flureau  v.  Thornhill 229 

Synge  v.  Synge 230 

1)  Actions  between  landlord  and  tenant. 

Raynor  v.  Blatz  Brewing  Co 234 

Eagen  v.  Browne 237 

2)  Sale  of  land. 

McGuckin   v.  Milbank 238 

(1)   Breach  of  vendor, 

Hopkins  v.  Lee 240 

Margraf  v.  Muir 241 

a.  Breach  of  covenant  of  title. 

Staats  V.  Ten  Eyck 243 

2.  Contracts  relating  to  Personal  Property. 

White  V.  Solomon 253 

1)  Bailment. 

Keith  V.  De  Bussigney 253 

(1)   Damages    against    a    common   carrier   for 
breach  of  contract  to  transport  personalty. 
Home  V.  Midland  Railway 254 

2)  Sales  of  personal  property. 

(1)   Breach  of  vendor. 

Shields  v.  Pettie 258 

Messmore  v.  The  New  York  Shot  and  Lead  Co.  .261 
Cory  V.  Thomas  Ironworks  &  Shipbuilding  Com- 
pany, Limited  265 


XXVI  TABLE  OF   CONTENTS. 

V.  DAMAGES  IN  ACTIONS  ON  CONTRACTS— Continued. 

Brown  v.  Muller 271 

Ashmore  v.  Cox 273 

a.  Breach  of  Warranty. 

Perley  v.  Balch 277 

Gary  v.  Gruman 280 

Cahen  v.  Piatt 282 

Hammond  v.  Bussey .284 

Park  V.  Richardson 291 

Hendrickson  v.  Back 292 

Bostock  V.  Nicliolson 293 

Isaacs  V.  Wanamaker 297 

(2)  Breach  of  vendee. 

Ganson  v.  Madigan 298 

Dustan  v.  McAndrew 300 

Bridgford  v.  Crocker 304 

Kadish  v.  Young 30i) 

Canda  v.  Wick 310 

Windmuller  v.  Pope 811 

Unexcelled  Fire- Works  Co.  v.  Polites 312 

Van  Brocklen  v.  Smeallie 315 

Roelim  V.  Horst 321 

3)  Contracts  to  Manufacture. 

(1)  Breach  of  vendor. 

Beeman  v.  Banta 323 

Jordan  v.  Patterson 325 

(2)  Breach  of  vendee. 

Bement  v.  Smith 330 

Hosmer  v.  Wilson 334 

Ballentine  v.  Robinson 339 

Shawham  v.  Van  Nest 341 

Todd  V.  Gamble 347 

Guetzkow  Bros.  Co.  v.  Andrews 350 

3.  Contracts  relating  to  WorTc,  Labor,  and  Services. 

Hayward  v.  Leonard 353 

Valente  v.  Weinberg 355 

Ware  Bros.  v.  Cortland  C.  &  C.  Co 357 

1)   Damages  for  unlawful  discharge. 

Dennis  v.  Maxfield 360 

Wolf  V.   Studebaker 364 

Howard  v.   Daly 366 

Sutherland  v.  Wyer 374 

McMullen  v.  Dickinson  Co 376 

4.  Breach  of  Contract  to  Transport  Passengers. 

Hobbs  V.  London  &  Southwestern  Railway 381 

Turner  v.  Great  Northern  Ry.  Co 387 


TABLE  OP   CONTENTS.  XXVll 

V.  DAMAGES  IN  ACTIONS  ON  CONTRACTS— Continued. 

Cooley  V.  Pennsylvania  R.  Co 389 

Gillespie  v.  Brooklyn  Heights  R,  R.  Co 391 

5.  Contract  for  Board  and  Roovis. 

Wilkinson  v.  Davies 404 

VI.  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

1.  Negligence. 

Richmond  Gas   Co.   v.    Baker 407 

Hubbard  v.  N.  Y.  &  N.  H.  &  H.  R.  Co 409 

Donahue  v.  Keystone  Gas  Co 409 

Kronold  v.  City  of  N.  Y 410 

Bondy  v.  N.  Y.  City  R.  R.  Co 414 

1)  Actions  against  common  carriers. 

Denny  v.  New  York  Central  Railroad 416 

Green-Wheeler  Shoe  Co.  v.  Chicago.  R.  I.  &  P.  Ry. 
Co 419 

2)  Death  'by  negligence. 

Hassenyer  v.  Michigan  Cent.  R.  R.  Co 423 

Demarest  v.   Little 427 

Hegerich  v.  Keddie 431 

Denver  &  R.  G.  R.  Co.  v.  Spencer 441 

Broughel  v.  Southern  New  Eng.  Tel.  Co 444 

Smith  V.  Lehigh  Valley  R.  Co 449 

2.  Trespass. 

Perrott  v.    Shearer 451 

Stodghill  V.  Chicago,  Burlington  &  Quincy  Railroad 453 

Koerber  v.  Patek -fST 

Hadwell  v.  Righton 462 

3.  Trover  and  Conversion. 

Forsyth  v.  Wells 465 

Groat  V.  Gile 468 

Bateman  v.  Ryder 475 

Barker  v.  Lewis 477 

White  V.   Yawkey 479 

Wallingford  v.  Kaiser 482 

4.  Replevin. 

Wiley  V.  McGrath 488 

Pabst  Brewing  Co.  v.  Rapid  Safety  Filter  Co 490 

5.  Nuisance. 

Schlitz  Brewing  Co.  v.  Compton 493 

Ackerman  v.  True 499 

Pritchard  v.  Edison  Electric  111.  Co 502 

6.  Assault  and  Battery. 

Fetter  v.  Beal 506 

Beach  v.  Hancock 507 

Hanna  v.  Sweeney 509 


XXVIH  TABLE  OF   CONTENTS. 

VI.  DAMAGES  IN  ACTIONS  FOR  WRONGS— Continued. 

7.  Slander. 

Lynch  V.  Knight 512 

Fhinuigan  v.  Stauss 513 

8.  Libel. 

Sickra  v.  Small 515 

Smith  V.  Matthews 518 

Taylor  v.  Hearst 521 

Butler  V.  Hoboken  Printing  and  Pub.  Co 522 

9.  False  Imprisonment. 

Wegner  v.  Risch 527 

Craven  v.   Bloomingdale 529 

10.  Malieious  Prosecution. 

Samieloff  v.  N.  Y.  &  Q.  C.  Ry.  Co 534 

11.  Fraud  and  Deceit. 

Peek  V.  Derry 537 

Gustaf son  v.  Rustemeyer 538 

Brown  v.  Morrill 543 

12.'  Seduction. 

Hewitt  V,   Prime 546 

Mathies  v.  Mazet 548 

13.  Criminal  Conversation. 

Angell  V.  Reynolds 550 

Shannon  v,   Swanson 553 

VII.  BREACH  OF  PROMISE  TO  MARRY. 

Kellert  v.  Robie 556 

Roberts  v.  Druillard 558 

Salchert  v.  Reinig 561 

VIII.  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

Primrose  v.  W.  U.  Tel.  Co 567 

McPeek  v.  W.  U.  Tel.  Co 571 

Western  Union  Tel.  Co.  v.  Nye 574 

IX.  ACTIONS  UNDER  "CIVIL  DAMAGE  ACT." 

Merrinane  v.  Miller 582 

Beckerle  v.   Brandon 586 

X.  EMINENT  DOMAIN. 

South  Buffalo  Railway  Co.  v.  Kirkow 590 

Stephens  v.  N.  Y.,  O.  &  W.  R.  R.  Co 594 

Henkel  v.  Wabash  P.  T.  R.  R.  Co 596 

In  re  City  of  New  York 597 

XI.  VALUE. 

Kountz  V.  Kirkpatriek 602 

Boom  Co.  V.  Patterson 610 

Hilton  V.  Phoenix  Assurance  Co 612 

McMahon  v.  City  of  Dubuque 614 

Treanor  v.  New  York  Breweries  Co 616 

Sills  V,  Cochems 618 


TABLE  OF   CONTENTS.  XXIX 

XI.  VALUE— Continued. 

1.  Fluctuation  in  value. 

Baker  v.  Drake 619 

Ingram  v.  Rankin 624 

Galigher  v.  Jones 627 

XII.  MITIGATION  OP  DAMAGES. 

Currier  v.  Swan 631 

Goldsmith  v.  Joy 632 

Nicholl  V.  Ashton 640 

XIII.  INTEREST. 

Atwood  V.  Boston  Forwarding  &  Transfer  Co 644 

Bernhard  v.  Rochester  German  Ins.  Co 645 

XIV.  EXPENSES  OF  LITIGATION. 

Day  V.  Woodworth 648 

Agius  V.  Gt.  Western  Colliery  Co 651 

XV.  EVIDENCE. 

Louisville,  N.  A.  &  C.  R.  R.  v.  Sparks 655 

Sharp  V.  U.  S 657 

Poehlmann  v.  Kertz 662 

Briggs  V.  N.  Y.,  N.  H.  &  H.  R.  Co 664 

Hicks  V.  Monarch  Cycle  Mfg.  Co 667 

Robinson  v.  N.  Y.  El.  R.  R 669 

Bartow  v.  Erie  R.  R.  Co 671 

Marriott  v.  Williams 672 

Gombert  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co 674 

XVL  PROVINCE  OF  COURT  AND  JURY. 

Phillips  V.  London  &  S.  W.  Railway 680 

Gambrell  v.  Schooley 681 

Tathwell  v.  City  of  Cedar  Rapids. 682 

Chicago  City  Ry.  Co.  v.  Gemmill 686 

Southern  Pacific  Co.  v.  Fitchett 689 


Cases  on  Measure  of  Damages 

I.     INTRODUCTION. 

GENERAL    PRINCIPLES   AND  THEORY   OF 
DAMAGES 


1.    Injuria  Sine  Damno. 
WEBB  V.  PORTLAND  MANUFACTURING  CO. 

Massachusetts,  183S.    3  Sumner,  189. 

This  is  a  bill  in  equity  for  an  injunction  to  prevent  the  defend- 
ant from  diverting  a  watercourse  from  the  plaintiff's  mill. 

At  the  Saccarappi  Falls,  on  the  Presumpscut  river,  there  were 
two  successive  falls,  upon  which  were  erected,  about  40  or  50 
rods  apart,  two  milldams,  called  the  upper  and  the  lower  dams, 
in  the  latter  of  which  the  plaintiff  and  the  defendant  were  en- 
titled to  certain  mill  privileges.  In  order  to  supply  water  to  its 
factory  near  the  left  bank  of  the  river,  the  defendant  opened  a 
canal  into  the  pond  just  below  the  upper  dam,  and  returned  the 
water  thus  withdra^^'n  into  the  river  below  the  lower  dam,  insist- 
ing upon  its  right  so  to  divert  the  water  because  it  was  a  small 
part  only,  (about  one-fourth),  of  the  water,  to  which  defendant 
was  entitled  as  mill  owner  on  the  lower  dam. 

Story,  J.  The  question,  which  has  been  argued  upon  the  sug- 
gestion of  the  court,  is  of  vital  importance  in  the  cause ;  and,  if 
decided  in  favor  of  the  plaintiff,  it  supersedes  many  of  the  in- 
quiries, to  which  our  attention  must  otherwise  be  directed.  It  is 
on  this  account,  that  we  thought  it  proper  to  be  argued,  separately 
from  the  general  merits  of  the  cause. 

The  argument  for  the  defendants  then  presents  two  distinct 
questions.  The  first  is,  whether,  to  maintain  the  present  suit, 
it  is  essential  for  the  plaintiff  to  establish  any  actual  damage. 

1 


3  GENERAL   PRINCIPLES   AND   THEORY   OP   DAMAGES. 

The  second  is,  whether,  in  point  of  law,  a  mill-owner,  having  a 
right  to  a  certain  portion  of  the  water  of  a  stream  for  the  use 
of  his  mill  at  a  particular  dam,  has  a  right  to  draw  off  the  same 
portion,  or  any  less  quantity  of  the  water,  at  a  considerable  dis- 
tance above  the  dam,  without  the  consent  of  the  owners  of  other 
mills  on  the  same  dam.  In  connection  with  these  questions  the 
point  will  also  incidentally  arise,  whether  it  makes  any  difference, 
that  such  drawing  off  of  the  water  above,  can  be  shown  to  be  no 
sensible  injury  to  the  other  mill-owners  on  the  lower  dam. 

As  to  the  first  question,  I  can  very  well  understand  that  no 
action  lies  in  a  case  where  there  is  damnum  absque  injuria,  that 
is,  where  there  is  a  damage  done  without  any  wrong  or  violation 
of  any.  right  of  the  plaintiff.  But  I  am  not  able  to  understand, 
how  it  can  correctly  be  said,  in  a  legal  sense,  that  an  action  will 
not  lie,  even  in  case  of  a  wrong  or  violation  of  a  right,  unless 
it  js  followed  by  some  perceptible  damage,  which  can  be  estab- 
lished, as  a  matter  of  fact;  in  other  words,  that  injuria  sine 
damno  is  not  actionable.  See  Mayor  of  Lynn  v.  Mayor  of  Lon- 
don, 4  Term.  R.  130,  141,  143,  144;  Com.  Dig.  ''Action  on  the 
Case,"  B,  1,  2.  On  the  contrary,  from  my  earliest  reading,  I 
have  considered  it  laid  up  among  the  very  elements  of  the  com- 
mon law,  that,  wherever  there  is  a  wrong,  there  is  a  remedy  to 
redress  it;  and  that  every  injury  imports  damage  in  the  nature 
of  it ;  and,  if  no  other  damage  is  established,  the  party  is  entitled 
to  a  verdict  for  nominal  damages.  A  fortiori,  this  doctrine  ap- 
plies where  there  is  not  only  a  violation  of  a  right  of  the  plain- 
tiff, but  the  act  of  the  defendant,  if  continued,  may  become  the 
foundation,  by  lapse  of  time,  of  an  adverse  right  in  the  defend- 
ant ;  for  then  it  assumes  the  character,  not  merely  of  a  violation 
of  a  right,  tending  to  diminish  its  value,  but  it  goes  to  the  abso- 
lute destruction  and  extinguishment  of  it.  Under  such  circum- 
stances, unless  the  party  injured  can  protect  his  right  from  such 
violation  by  an  action,  it  is  plain,  that  it  may  be  lost  or  de- 
stroyed, without  any  possible  remedial  redress.  In  my  judg- 
ment, the  common  law  countenances  no  such  inconsistency,  not  to 
call  it  by  a  stronger  name.  Actual,  perceptible  damage  is  not 
indispensable  as  the  foundation  of  an  action.  The  law  tolerates 
no  farther  inquiry  than  whether  there  has  been  the  violation  of  a 
right.  If  so,  the  party  injured  is  entitled  to  maintain  his  action 
for  nominal  damages,  in  vindication  of  his  right,  if  no  other 
damages  are  fit  and  proper  to  remunerate  him. 


INJURIA    SINE    DAMNO.  3 

So  long  ago  as  the  great  case  of  Ashby  v.  White,  2  Ld.  Raym. 
938,  6  Mod.  45,  Holt,  524,  the  objection  was  put  forth  by  some 
of  the  judges,  and  was  answered  by  Lord  Holt,  with  his  usual 
ability  and  clear  learning ;  and  his  judgment  was  supported  by 
the  house  of  lords,  and  that  of  his  brethren  overturned.     By  the 
favor  of  an  eminent  judge.  Lord  Holt's  opinion,  apparently 
copied  from  his  own  manuscript,  has  been  recently  printed.     In 
this  last  printed  opinion,  (page  14),  Lord  Holt  says:     "It  is 
impossible  to  imagine  any  such  thing,  as  injuria  sine  damno. 
Every  injury  imports  damage  in  the  nature  of  it."     S.  P.  2  Ld. 
Raym.  955.     And  he  cites  many  cases  in  support  of  his  position. 
Among  these  is  Starling  v.  Turner,  2  Lev.  50,  2  Vent.  25,  where 
the  plaintiff  was  a  candidate  for  the  office  of  bridgemaster  of 
London  bridge,  and  the  lord  mayor  refused  his  demand  of  a 
poll;  and  it  was  determined,  that  the  action  was  maintainable 
for  the  refusal  of  the  poll.     Although  it  might  have  been,  that 
the  plaintiff  would  not  have  been  elected,  the  action  was  neverthe- 
less maintainable;  for  the  refusal  was  a  violation  of  the  plain- 
tiff's right  to  be  a  candidate.     So  in  the  case  cited,  as  from 
"23  Edw.  HI.  18,  tit.  Defense,"   (it  is  a  mistake  in  the  MS., 
and  should  be  29  Edw.  III.  18h ;  Fitz.  Abr.  tit.  "Defense,"  pi. 
5),  and  11  Hen.  IV.  47,  where  the  owTier  of  a  market,  entitled 
to  toll  upon  all  cattle  sold  within  the  market,  brought  an  action 
against  the  defendant,  for  hindering  a  person  from  going  to  the 
market  with  the  intent  to  sell  a  horse,  it  was,  on  the  like  ground, 
held  maintainable ;  for  though  the  horse  might  not  have  been 
sold,  and  no  toll  would  have  become  due ;  yet  the  hindering  the 
plaintiff  from  the  possibility  of  having  toll  was  such  an  injury 
as  did  import  such  damage,  for  which  the  plaintiff  ought  to  re- 
cover.   So  in  Hunt  v.  Dowman,  Cro.  Jac.  478,  2  Rolle,  21,  where 
the  lessor  brought  an  action  against  the  lessee,  for  disturbing 
him  from  entering  into  the  house  leased,  in  order  to  view  it,  and 
to  see  whether  any  waste  was  committed ;  and  it  was  held,  that 
the  action  well  lay,  though  no  waste  was  committed  and  no  ac- 
tual damage  done ;  for  the  lessor  had  a  right  so  to  enter,  and  the 
hindering  of  him  was  an  injury  to  that  right,  for  which  he  might 
maintain  an  action.     So  Herring  v.  Finch,  2  Lev.  2.50,  where  it 
was  held,  that  a  person  entitled  to  vote,  who  was  refused  his 
vote  at  an  election,  might  well  maintain  an  action  therefor,  al- 
though the  candidate  for  whom  he  might  have  voted  might  not 
have  been  chosen ;  and  the  voter  could  not  sustain  any  pereep- 


4  GENERAL    PRINCIPLES   AND   THEORY    OF   DAMAGES. 

lible  or  actual  damage  by  such  refusal  ol  his  vote.     The  law 
gives  the  remedy  in  such  ease;  for  there  is  a  clear  violation  of 
the  right.     And  his  doctrine,  as  to  a  violation  of  the  right  to 
vote,  is  now  incontrovertibly  established;  and  yet  it  would  be 
impracticable  to  show  any  temporal  or  actual  damage  thereby. 
See  Harman  v.  Tappenden,  1  East,  555;  Drewe  v.  Coulton,  id. 
563,  note ;  Kilham  v.  Ward,  2  Mass.  236 ;  Lincoln  v.  Hapgood, 
11  Mass.  350;  2  Vin.  Abr.  "Actions,"  [Case]  n.  c.  p!.  3.     In  the 
case  of  Ashby  v.  White,  as  reported  by  Lord  Raymond  (2  Ld. 
Raym.  953),  Lord  Holt  said:  "If  the  plaintiff  has  a  right,  he 
must  of  necessity  have  a  means  to  vindicate  and  maintain  it,  and 
a  remedy,  if  he  is  injured  in  the  exercise  or  enjoyment  of  it:  and 
indeed,  it  is  a  vain  thing  to  imagine  a  right  without  a  remedy ; 
for  want  of  right  and  want  of  remedy  are  reciprocal."     S.  P. 
6  Mod.  53.     The  principles  laid  down  by  Lord  Holt  are  so 
strongly  commended,  not  only  by  authority,  but  by  the  common 
sense  and  common  justice  of  mankind,  that  they  seem  absolutely, 
in  a  juridical  view,  incontrovertible.     And  they  have  been  fully 
recognized  in  many  other  cases.     The  note  of  Mr.  Sergeant  Wil- 
liams to  Mellor  v.  Spateman,  1  Saund.  346a,  note  2 ;  Wells  v. 
Watling,  2  W.  Bl.  1239 ;  and  the  case  of  the  Tunbridge  Dippers, 
Weller  v.  Baker,  2  Wils.  414,  are  direct  to  the  purpose.     I  am 
aware  that  some  of  the  old  cases  inculcate  a  different  doctrine, 
and  perhaps  are  not  reconcilable  with  that  of  Lord  Holt.     There 
are  also  some  modern  cases,  which  at  first  view  se.em  to  the  con- 
trary.   But  they  are  distinguishable  from  that  now  in  judgment, 
and  if  they  were  not,  ego  assent ior  scoevoloe.     The  case  of  Wil- 
liams v.  Morland,  2  Barn.  &  C.  910,  seems  to  have  proceeded 
upon  the  ground,  that  there  was  neither  any  damage  nor  any 
injury  to  the  right  of  the  plaintiff.     Whether  that  case  can  be 
supported  upon  principle,  it  is  not  now  necessary  to  say.     Some 
of  the  dicta  in  it  have  been  subsequently  impugned;  and  the 
general  reasoning  of  the  judges  seems  to  admit,  that  if  any 
right  of  the  plaintiff  had  been  violated,  the  action  would  have 
lain.     The  case  of  Jackson  v.  Pesked.  1  Maule  &  S.  235,  turned 
upon  the  supposed  defects  of  the  declaration,  as  applicable  to  a 
mere  reversionary  interest,  it  not  stating  any  act  done  to  the 
prejudice  of  that  reversionary  interest.     I  do  not  stop  to  in- 
quire, whether  there  was  not  an  over-nicety  in  the  application  of 
the  technical  principles  of  pleading  to  that  case ;  although,  not- 
withstanding the  elaborate  opinion  of  Lord  Ellenborough,  one 


INJURIA   SINE    DAMNO.  5 

might  be  inclined  to  pause  upon  it.  The  case  of  Young  v. 
Spencer,  10  Barn.  &  C.  145,  turned  also  upon  the  point,  whether 
any  injury  was  done  to  a  reversionary  interest.  I  confess  myself 
better  pleased  with  the  ruling  of  the  learned  judge  (Mr.  Justice 
Bayley,  )  at  the  trial,  than  with  the  decision  of  the  court  in  grant- 
ing a  new  trial.  But  the  court  admitted,  that,  if  there  was  any 
injury  to  the  reversionary  right,  the  action  would  lie;  and 
although  there  might  be  no  actual  damage  proved,  yet  if  any- 
thing done  by  the  tenant  would  destroy  the  evidence  of  title,  the 
action  was  maintainable.  A  fortiori,  the  action  must  have  been 
held  maintainable,  if  the  act  done  went  to  destroy  the  existing 
right,  or  to  found  an  adverse  right. 

On  the  other  hand,  Marzetti  v.  Williams,  1  Barn.  &  Adol.  415, 
goes  the  whole  length  of  Lord  Holt's  doctrine;  for  there  the 
plaintiff  recovered,  notwithstanding  no  actual  damage  was 
proved  at  the  trial;  and  Mr.  Justice  Taunton  on  that  occasion 
cited  many  authorities  to  show,  that,  where  a  w^rong  is  done, 
by  which  the  right  of  the  party  may  be  injured,  it  is  a  good 
cause  of  action,  although  no  actual  damage  be  sustained.  In 
Hobson  V.  Todd,  4  Term  R.  71,  73,  the  court  decided  the  case 
upon  the  very  distinction  which  is  most  material  to  the  present 
case,  that  if  a  commoner  might  not  maintain  an  action  for  an 
injury,  however  small,  to  his  right,  a  mere  wrong-doer  might, 
by  repeated  torts,  in  the  course  of  time  establish  evidence  of  a 
right  of  common.  The  same  principle  was  afterwards  recog- 
nized by  Mr.  Justice  Gross,  in  Pinder  v.  Wadsworth,  2  East, 
162.  But  the  case  of  Bower  v.  Hill,  1  Bing.  N.  C.  549,  fully 
sustains  the  doctrine  for  which  I  contend ;  and,  indeed,  a  stronger 
ease  of  its  application  cannot  well  be  imagined.  There  the  court 
held,  that  a  permanent  obstruction  to  a  navigable  drain  of  the 
plaintiff's,  though  choked  up  with  mud  for  sixteen  years,  was 
actionable,  although  the  plaintiff  received  no  immediate  damage 
thereby ;  for,  if  acquiesced  in  for  twenty  years,  it  would  become 
evidence  of  a  renunciation  and  abandonment  of  the  right  of 
way.  The  case  of  Blanchard  v.  Baker,  8  Greenl.  253,  268,  recog- 
nizes the  same  doctrine  in  the  most  full  and  satisfactory  man- 
ner, and  is  directly  in  point;  for  it  was  a  case  for  diverting 
water  from  the  plaintiff's  mill.  I  should  be  sorry  to  have  it  sup- 
posed, for  a  moment,  that  Tyler  v.  Wilkinson,  4  Mason,  397,  im- 
ported a  different  doctrine.  On  the  contrary,  I  have  always  con- 
sidered it  as  proceeding  upon  the  same  doctrine. 


6  GENERAL   PRINCIPLES   AND   THEORY   OF   DAMAGES. 

Upon  the  whole,  without  going  farther  into  an  examination 
of  the  authorities  on  this  subject,  my  judgment  is,  that  when- 
ever there  is  a  clear  violation  of  a  right,  it  is  not  necessary  in 
an  action  of  this  sort  to  show  actual  damage;  that  every  viola- 
tion imports  damage;  and  if  no  other  be  proved,  the  plaintiff 
is  entitled  to  a  verdict  for  nominal  damages.  And,  a  fortiori, 
that  this  doctrine  applies,  whenever  the  act  done  is  of  such  a 
nature,  as  that  by  its  repetition  or  continuance  it  may  become  the 
foundation  or  evidence  of  an  adverse  right.  See,  also,  Mason 
V.  Hill,  3  Barn.  &  Adol.  304,  5  Barn.  &  Adol.  1. 

But  if  the  doctrine  were  otherwise,  and  no  action  were  main- 
tainable at  law,  without  proof  of  actual  damage;  that  would 
furnish  no  ground  why  a  court  of  equity  should  not  interfere 
and  protect  such  a  right  from  violation  and  invasion ;  for,  in  a 
great  variety  of  cases,  the  very  ground  of  the  interposition  of  a 
court  of  equity  is,  that  the  injury  done  is  irremediable  at  law; 
and  that  the  right  can  only  be  permanently  preserved  or  per- 
petuated by  the  powers  of  a  court  of  equity.  And  one  of  the 
most  ordinary  processes,  to  accomplish  this  end  is  by  a  writ  of 
injunction,  the  nature  and  efficacy  of  which  for  such  purpose,  I 
need  not  state,  as  the  elementary  treatises  fully  expound  them. 
See  Eden,  Inj.;  2  Story,  Eq.  Jur.  c.  23,  §§  86-959;  Bolivar 
Manuf 'g  Co.  v.  Neponset  Manuf'g  Co.,  16  Pick.  241.  If,  then, 
the  diversion  of  water  complained  of  in  the  present  case  is  a 
violation  of  the  right  of  the  plaintiff,  and  may  permanently  in- 
jure that  right,  and  become,  by  lapse  of  time,  the  foundation  of 
an  adverse  right  in  the  defendant,  I  know  of  no  more  fit  case 
for  the  interposition  of  a  court  of  equity,  by  way  of  injunction, 
to  restrain  the  defendant  from  such  an  injurious  act.  If  there 
be  a  remedy  for  the  plaintiff  at  law  for  damages,  still  that  remedy 
is  inadequate  to  prevent  and  redress  the  mischief.  If  there  be 
no  such  remedy  at  law,  then,  a  fortiori,  a  court  of  equity  ought 
to  give  its  aid  to  vindicate  and  perpetuate  the  right  of  the  plain- 
tiff. A  court  of  equity  will  not  indeed  entertain  a  bill  for  an 
injunction  in  case  of  a  mere  trespass  fully  remediable  at  law. 
But  if  it  might  occasion  irreparable  mischief,  or  permanent  in- 
jury, or  destroy  a  right,  that  is  the  appropriate  case  for  such  a 
bill.  See  2  Story,  Eq.  Jur.  §§  926-928,  and  the  cases  there  cited; 
Jerome  v.  Ross,  7  Johns.  Ch.  315;  Van  Bergen  v.  Van  Bergen, 
3  Johns.  Ch.  282 ;  Newburgh  &  C.  Turnpike  v.  Miller,  5  Johns. 
Ch.  101 ;  Gardner  v.  Village  of  Newburgh,  2  Johns.  Ch.  162. 


INJURIA   SINE    DAMNO.  7 

Let  US  eome  then,  to  the  only  remaining  question  in  the  cause ; 
and  that  is,  whether  any  right  of  the  plaintiff,  as  mill-owner  on 
the  lower  dam,  is  or  will  be  violated  by  the  diversion  of  the 
water  by  the  canal  of  the  defendant.  And  here  it  does  not 
seem  to  me  that,  upon  the  present  state  of  the  law,  there  is  any 
real  ground  for  controversy,  although  there  were  formerly  many 
vexed  questions,  and  much  contrariety  of  opinion.  The  true 
doctrine  is  laid  down  in  Wright  v.  Howard,  1  Sim.  &  S.  190, 
by  Sir  John  Leach,  in  regard  to  riparian  proprietors,  and  his 
opinion  has  since  been  deliberately  adopted  by  the  king 's  bench. 
Mason  v.  Hill,  3  Barn.  &  Adol.  304,  5  Barn.  &  Ado.  1.  See, 
also,  Bealey  v.  Shaw,  6  East,  208.  "Prima  facie,"  says  that 
learned  judge,  "the  proprietor  of  each  bank  of  a  stream  is  the 
proprietor  of  half  of  the  land  covered  by  the  stream ;  but  there  is 
no  property  in  the  water.  Every  proprietor  has  an  equal  right 
to  use  the  water,  which  flows  in  the  stream;  and  consequently, 
no  proprietor  can  have  the  right  to  use  the  water  to  the  prejudice 
of  any  other  proprietor,  without  the  consent  of  the  other  pro- 
prietors, who  may  be  affected  by  his  operations;  no  proprietor 
can  either  diminish  the  quantity  of  water,  which  would  other- 
wise descend  to  the  proprietors  below,  nor  throw  the  water  back 
upon  the  proprietors  above.  Every  proprietor,  who  claims  a 
right  either  to  throw  the  water  back  above,  or  to  diminish  the 
quantity  of  water,  which  is  to  descend  below,  must,  in  order 
to  maintain  his  claim,  either  prove  an  actual  grant  or  license 
from  the  proprietors  affected  by  his  operations,  or  must  prove 
an  uninterrupted  enjoyment  of  twenty  years,  which  term  of 
twenty  years  is  now  adopted  upon  a  principle  of  general  con- 
venience, as  affording  conclusive  presumption  of  a  grant."  The 
same  doctrine  was  fully  recognized  and  acted  upon  in  the  case 
of  Tyler  v.  Wilkinson,  4  Mason,  397,  and  also  in  the  case  of 
Blanchard  v.  Baker,  8  Greenl.  253,  266.  In  the  latter  case  the 
learned  judge,  (Mr.  Justice  Weston),  who  delivered  the  opinion 
of  the  court,  used  the  following  emphatic  language :  ' '  The  right 
to  the  use  of  a  stream  is  incident  or  appurtenant  to  the  land 
through  which  it  passes.  It  is  an  ancient  and  well-established 
principle,  that  it  cannot  be  lawfully  diverted,  unless  it  is  re- 
turned again  to  its  accustomed  channel,  before  it  passes  the 
land  of  a  proprietor  below.  Running  water  is  not  susceptible 
of  an  appropriation,  which  will  justify  the  diversion  or  unrea- 
sonable detention  of  it.    The  proprietor  of  the  water-course  has 


8  GENERAL   PRINCIPLES   AND   THEORY   OF   DAMAGES. 

a  right  to  avail  himself  of  its  momentum  as  a  power,  which  may 
be  turned  to  beneficial  purposes."  Mr.  Chancellor  Kent  has 
also  summed  up  the  same  doctrine,  with  his  usual  accuracy,  ui 
the  brief,  but  pregnant,  text  of  his  Connnentaries,  (3  Kent's 
Comm.  Lect.  42,  p.  439,  3d  ed.)  ;  and  I  scarcely  know,  where 
else  it  can  be  found  reduced  to  so  elegant  and  satisfactory  a 
formulary.  In  the  old  books,  the  doctrine  is  quaintly,  though 
clearly  stated ;  for  it  is  said,  that  a  water-course  begins  ex  jure 
naturce,  and  having  taken  a  certain  course  naturally,  it  cannot 
be  [lawfully]  diverted.  "Aqua  currit,  et  debet  currere,  ut  cur- 
rere  solehat."     Shury  v.  Piggot,  3  Bulst.  339,  Poph.  166. 

The  same  principle  applies  to  the  owners  of  mills  on  a  stream. 
They  have  an  undoubted  right  to  the  flow  of  the  water,  as  it 
has  been  accustomed  of  right  and  naturally  to  flow  to  their  re- 
spective mills.  The  proprietor  above  has  no  right  to  divert,  or 
unreasonably  to  retard,  this  natural  flow  to  the  mills  below; 
and  no  proprietor  below  has  a  right  to  retard  or  turn  it  back 
upon  the  mills  above,  to  the  prejudice  of  the  right  of  the  pro- 
prietors thereof.  This  is  clearly  established  by  the  authorities 
already  cited;  the  only  distinction  between  them  being,  that 
the  right  of  a  riparian  proprietor  arises  by  mere  operation  of 
law,  as  an  incident  to  his  ownership  of  the  bank ;  and  that  of  a 
mill-owner,  as  an  incident  to  his  mill.  Bealey  v.  Shaw,  6  East, 
208 ;  Saunders  v.  Newman,  1  Barn.  &  Aid.  258 ;  Mason  v.  Hill, 
3  Bam.  &  Adol.  304,  5  Barn.  &  Adol.  1 ;  Blanchard  v.  Baker, 
8  Greenl.  253,  268;  and  Tyler  v.  Wilkinson,  4  Mason,  397,  are 
fully  in  point.  Mr.  Chancellor  Kent,  in  his  Commentaries,  relies 
on  the  same  principles,  and  fully  supports  them  by  a  large  survey 
of  the  authorities.    3  Kent  Comm.  Lect.  52,  pp.  441-445,  3d  ed. 

Now,  if  this  be  the  law  on  this  subject,  upon  what  ground 
can  the  defendant  insist  upon  a  diversion  of  the  natural  stream 
from  the  plaintiff's  mills,  as  it  has  been  of  right  accustomed  to 
flow  thereto?  First,  it  is  said,  that  there  is  no  perceptible  dam- 
age done  to  the  plaintiff.  That  suggestion  has  been  already  in 
part  answered.  If  it  were  true,  it  could  not  authorize  a  diver- 
sion, because  it  impairs  the  right  of  the  plaintiff  to  the  full,  nat- 
ural flow  of  the  stream ;  and  may  become  the  foundation  of  an 
adverse  right  in  the  defendant.  In  such  a  case,  actual  damage 
is  not  necessary  to  be  established  in  proof.  The  law  presumes 
it.  The  act  imports  damage  to  the  right,  if  damage  be  neces- 
sary.    Such  a  case  is  wholly  distinguishable  from  a  mere  fugi- 


INJURIA    SINE    DAMNO.  9 

tive,  temporary  trespass,  by  diverting  or  withdrawing  the  water 
a  short  period,  without  damage,  and  without  any  pretense  of 
right.  In  such  a  case  the  wrong,  if  there  be  no  sensible  damage 
and  it  be  transient  in  its  nature  and  character,  as  it  does  not 
touch  the  right,  may  possibly  (for  I  give  no  opinion  upon  such 
a  case),  be  without  redress  at  law;  and  certainly  it  would  found 
no  groimd  for  the  interposition  of  a  court  of  equity  by  way  of 
injunction. 

But  I  confess  myself  wholly  unable  to  comprehend,  how  it 
can  be  assumed,  in  a  case  like  the  present,  that  there  is  not  and 
cannot  be  an  actual  damage  to  the  right  of  the  plaintiff.  "What 
is  that  right?  It  is  the  right  of  having  the  water  flow  in  its 
natural  current  at  all  times  of  the  year  to  the  plaintiff's  miUs. 
Now,  the  value  of  the  mill  privileges  must  essentially  depend, 
not  merely  upon  the  velocit.y  of  the  stream,  but  upon  the  head 
of  w^ater,  which  is  permanently  maintained.  The  necessary  re- 
sult of  lowering  the  head  of  water  permanently,  would  seem, 
therefore,  to  be  a  direct  diminution  of  the  value  of  the  privi- 
leges.    And  if  so,  to  that  extent  it  must  be  an  actual  damage. 

Again,  it  is  said,  that  the  defendants  are  mill-o^\^lers  on  the 
lower  dam,  and  are  entitled,  as  such,  to  their  proportion  of  the 
water  of  the  stream  in  its  natural  flow.  Certainly  they  are. 
But  where  are  they  so  entitled  to  take  and  use  it?  At  the 
lower  dam;  for  there  is  the  place,  where  their  right  attaches, 
and  not  at  any  place  higher  up  the  stream.  Suppose  they  are 
entitled  to  use,  for  their  own  mills  on  the  lower  dam,  half  the 
water  which  descends  to  it,  what  ground  is  there  to  say,  that 
they  have  a  right  to  draw  off  that  half  at  the  head  of  the  mill- 
pond?  Suppose,  the  head  of  water  at  the  lower  dam  in  ordi- 
nary times  is  two  feet  high,  is  it  not  obvious,  that  by  withdraw- 
ing at  the  head  of  the  pond  one-half  of  the  water,  the  water  at 
the  dam  must  be  proportionately  lowered?  It  makes  no  differ- 
ence, that  the  defendants  insist  upon  drawing  off  only  one-fourth 
of  what,  they  insist,  they  are  entitled  to ;  for,  pro  tanto,  it  will 
operate  in  the  same  manner;  and  if  they  have  a  right  to  draw 
off  to  the  extent  of  one-fourth  of  their  privilege,  they  have  an 
equal  right  to  draw  off  the  full  extent  of  it.  The  privilege, 
attached  to  the  mills  of  the  plaintiff,  is  not  the  privilege  of 
using  half,  or  any  other  proportion  merely,  of  water  in  the 
stream,  but  of  having  the  whole  stream,  undiminished  in  its 
natural  flow,  come  to  the  lower  dam  with  its  full  power,  and 


10  GENERAL   PRINCIPLES   AND   THEORY   OF   DAMAGES. 

there  to  use  his  full  share  of  the  water  power.  The  plaintiff 
has  a  title,  not  to  a  half  or  other  proportion  of  the  water  in  the 
pond,  but  is,  if  one  may  so  say,  entitled  per  my  et  per  tout  to 
his  j)roportion  of  the  whole  bulk  of  the  stream,  imdivided,  and 
indivisible,  except  at  the  lower  dam.  This  doctrine,  in  my 
judgment,  irresistibly  follows  from  the  general  principles  already 
stated ;  and  what  alone  would  be  decisive,  it  has  the  express 
sanction  of  the  supreme  court  of  Maine,  in  the  case  of  Blanch- 
ard  V.  Baker,  8  Greenl.  253,  270.  The  court  there  said,  in  reply 
to  the  suggestion,  that  the  owners  of  the  eastern  shore  had  a 
right  to  half  the  water,  and  a  right  to  divert  it  to  that  extent: 
"It  has  been  seen,  that,  if  they  had  been  owners  of  both  sides, 
they  h-ad  no  right  to  divert  the  water  without  again  returning 
it  to  its  original  channel,  (before  it  passes  the  lands  of  another 
proprietor).  Besides,  it  was  impossible,  in  the  nature  of  things, 
that  they  could  take  it  from  their  side  only.  An  equal  portion 
from  the  plaintiff's  side  must  have  been  mingled  with  all  that 
was  diverted." 

A  suggestion  has  also  been  made,  that  the  defendants  have 
fully  indemnified  the  plaintiff  from  any  injury,  and  in  truth 
have  conferred  a  benefit  on  him,  by  securing  the  water  by 
means  of  a  raised  dam,  higher  up  the  stream,  at  Sebago  pond, 
in  a  reservoir,  so  as  to  be  capable  of  affording  a  full  supply  in 
the  stream  in  the  dryest  seasons.  To  this  suggestion  several 
answers  may  be  given.  In  the  first  place,  the  plaintiff  is  no 
party  to  the  contract  for  raising  the  new  dam,  and  has  no  in- 
terest therein ;  and  cannot,  as  a  matter  of  right,  insist  upon  its 
being  kept  up,  or  upon  any  advantage  to  be  derived  therefrom. 
In  the  next  place,  the  plaintiff  is  not  compellable  to  exchange 
one  right  for  another;  or  to  part  with  a  present  interest  in 
favor  of  the  defendants  at  the  mere  election  of  the  latter.  Even 
a  supposed  benefit  cannot  be  forced  upon  him  against  his  will; 
and,  certainly,  there  is  no  pretense  to  say,  that,  in  point  of  law, 
the  defendants  have  any  right  to  substitute,  for  a  present  exist- 
ing right  of  the  plaintiff's,  any  other,  which  they  may  deem  to 
be  an  equivalent.  The  private  property  of  one  man  cannot  be 
taken  by  another,  simply  because  he  can  substitute  an  equivalent 
benefit. 

Having  made  these  remarks  upon  the  points  raised  in  the  argu- 
ment, the  subject,  at  least  so  far  as  it  is  at  present  open  for  the 
consideration    of   the    court,    appears   to    me    to    be    exhausted. 


DAMNUM    ABSQUE  INJURIA.  11 

Whether,  consistently  with  this  opinion,  it  is  practicable  for  the 
defendants  successfully  to  establish  any  substantial  defense  to  the 
bill,  it  is  for  the  defendants,  and  not  for  the  court,  to  consider. 

I  am  authorized  to  say  that  the  district  judge  concurs  in  this 
opinion. 

Decree  accordingly. 


2.     Damnum  Absque  Injuria. 
THURSTON  V.  HANCOCK. 

Massachusetts,  1815.     12  Mass.  220. 

This  was  an  action  on  the  case. 

A  trial  was  had  upon  the  issue  of  not  guilty,  November,  1813, 
and  a  verdict  found  for  the  defendants,  was  to  be  set  aside,  and  a 
new  trial  granted,  if  in  the  opinion  of  the  court  the  plaintiflE  was 
entitled  to  maintain  his  action  upon  the  following  state  of  facts 
reported  by  the  judge  who  sat  in  the  trial :  viz.  That  the  plaintiff 
in  the  year  1802,  purchased  a  parcel  of  land  upon  Beacon  Hill, 
so  called,  in  Boston,  bounded  westwardly  on  land  belonging  to 
the  town  of  Boston  on  said  hill,  eastwardly  on  Bowdoin  street 
so  called,  and  northwardly  and  southwardly  on  land  of  D.  D. 
Rogers.  That  afterwards  in  the  year  1804,  the  plaintiff  erected  a 
valuable  brick  dwelling  house  thereon,  which  stood  at  the  dis- 
tance of  forty  feet  from  the  northern  and  southern  bounds  of 
his  land;  the  back  of  said  house  being  about  two  feet  from 
the  western  bounds  of  said  land.  That  the  foundation  of  said 
house  was  placed  about  fifteen  feet  below  the  ancient  surface 
of  the  land.  That  the  plaintiff  with  his  family  occupied  said 
house  and  land,  from  December,  1804,  until  they  were  obliged 
to  remove  therefrom,  as  hereafter  mentioned.  That  the  de- 
fendants commenced  digging  and  removing  the  gravel  from  the 
side  of  said  hill  in  the  year  1811.  That  on  January  27,  1811, 
the  plaintiff  gave  them  written  notice  that  his  house  was  en- 
dangered thereby.  That  the  defendants  notwithstanding  con- 
tinued to  dig  and  carry  away  the  earth  and  gravel  from  the 
hill,  until  the  commencement  of  this  action.  That  the  only  land 
belonging  to  the  defendants,  which  adjoined  to  the  said  house 
and  land  of  the  plaintiff,  was  purchased  by  them  of  the  to^\Ti  of 
Boston,  and  conveyed  by  deed  dated  August  6,  1811.     That 


12  GENERAL    PRINCIPLES    AND   THEORY    OF   DAMAGES. 

the  lauil  lliu.s  bought  consisted  of  a  lot  about  100  feet  square, 
upou  tile  top  of  said  hill,  and  a  right  in  a  highway  30  feet  wide, 
leading  to  it  from  Sunnier  street.  That  this  lot  and  highway 
were  laid  out  by  said  town  more  than  sixty  years  since,  for  the 
purpose  of  erecting  a  beacon,  and  have  never  been  used  for 
any  other  purpose,  except  the  erection  of  a  monument.  That 
the  town  derived  its  title  to  said  land  from  long  continued  pos- 
session for  the  purpose  aforesaid.  That  all  these  facts  were 
kno^^^l  to  the  defendants,  before  they  purchased  said  land  of  the 
town.  That  this  land  adjoined  the  plaintiff's  house  and  land 
on  the  western  side,  and  at  the  time  of  suing  out  the  plaintiff's 
writ  the  defendant's  digging  and  removal  of  the  earth  as  afore- 
said had  approached  on  the  surface  wdthin  five  or  six  feet  of 
the  plaintiff's  house  on  the  western  side  thereof,  and  in  some 
places  the  earth  had,  by  reason  of  said  digging  and  removal, 
fallen  from  the  walls  thereof.  That  the  defendants  had  dug 
and  carried  away  the  earth  near  the  northwestwardly  corner 
of  said  house  to  the  depth  of  45  feet,  and  on  the  western  side 
thereof  to  the  depth  of  30  feet,  below  the  natural  surface  of 
their  own  as  well  as  of  the  plaintiff's  land.  That  the  earth  dug 
and  removed  by  the  defendants  as  aforesaid  was  upon  and 
from  their  said  land  next  adjoining  the  plaintiff's  land.  That 
by  reason  of  the  digging  and  removing  of  the  earth  as  aforesaid, 
to  the  depth  aforesaid,  below  the  ancient  surface  of  the  earth, 
a  part  of  the  plaintiff's  earth  and  soil,  on  the  surface  of  his  said 
land,  had  fallen  away  and  slidden  upon  the  defendant's  land; 
and  the  foundation  of  the  plaintiff's  house  was  rendered  insecure, 
and  it  became  and  was  at  the  time  of  commencing  this  action, 
unsafe  and  dangerous  to  dwell  in  said  house;  and  the  plaintiff 
was  obliged  to  quit  and  abandon  the  same,  previous  to  his  com- 
mencing this  action,  and  afterwards  to  take  it  down  in  order 
to  save  the  materials  thereof. 

Parker,  C.  J.  The  facts  agreed  present  a  case  of  great  mis- 
fortune and  loss,  and  one  which  has  induced  us  to  look  very 
minutely  into  the  authorities,  to  see  if  any  remedy  exists  in  law 
against  those  who  have  been  the  immediate  actors  in  what  has 
occasioned  the  loss:  but  after  all  the  researches  we  have  been 
able  to  make,  we  cannot  satisfy  ourselves  that  the  facts  reported 
will  maintain  this  action. 

The  plaintiff  purchased  his  land  in  the  year  1802,  on  the  sum- 
mit of  Beacon  Hill,  which  has  a  rapid  declivity  on  all  sides.    In 


DAMNUM    ABSQUE   INJURIA.  13 

18U4  he  erected  a  brick  dwelling-house  and  outhouses  on  this 
lot;  and  laid  his  foundation,  on  the  western  side,  within  two 
feet  of  his  boimdary  line.  The  inhabitants  of  the  town  of  Bos- 
ton were  at  tliat  time  the  owners,  either  by  original  title  or  by 
an  uninterrupted  possession  for  more  than  sixty  years,  of  the 
land  on  the  hill  lying  westwardly  of  the  lot  purchased  by  the 
plaintiff.  On  the  6th  of  xVugust,  1811,  the  defendants  purchased 
of  the  town  the  land  situated  westwardly  of  the  said  lot  owned 
by  the  plaintiff;  and  in  the  same  year  commenced  levelling  the 
hill,  by  digging  and  carrying  away  the  gravel :  they  not  actually 
digging  up  to  the  line  of  division  between  them  and  the  plaintiff ; 
but  keeping  five  or  six  feet  therefrom.  Nevertheless  by  reason 
of  the  slope  of  the  hill,  the  earth  fell  away,  so  as  in  some  places 
to  leave  the  plaintiff's  foundation  wall  bare,  and  so  to  endanger 
the  falling  of  his  house,  as  to  make  it  prudent  and  necessary, 
in  the  opinion  of  skillful  persons,  for  the  safety  of  the  lives  of 
himself  and  his  family,  to  remove  from  the  house ;  and  in  order 
to  save  the  materials,  to  take  do^^^l  the  house,  and  to  rebuild 
it  on  a  safer  foundation.  The  defendants  were  notified  of  the 
probable  consequences  of  thus  digging  by  the  plaintiff,  and  were 
warned  that  they  would  be  called  upon  for  damages,  in  case  of 
any  loss. 

The  manner  in  which  the  town  of  Boston  acquired  a  title  to 
the  land,  or  to  the  particular  use  to  which  it  was  appropriated, 
can  have  no  influence  upon  the  question ;  as  the  fee  was  in  the 
town,  w^ithout  any  restriction  as  to  the  manner  in  which  the 
land  should  be  used  or  occupied. 

It  is  a  common  principle  of  the  civil  and  of  the  common  law% 
that  the  proprietor  of  land,  unless  restrained  by  covenant  or 
custom,  has  the  entire  dominion,  not  only  of  the  soil,  but  of  the 
space  above  and  below  the  surface,  to  any  extent  he  may  choose 
to  occupy  it. 

The  law,  founded  upon  principles  of  reason  and  common  util- 
ity, has  admitted  a  qualification  to  this  dominion,  restricting  the 
proprietor  so  to  use  his  own,  as  not  to  injure  the  property,  or 
impair  any  actual  existing  rights  of  another.  Sic  utere  tuo  ut 
alienum  non  Imdas.  Thus  no  man,  having  land  adjoining  his 
neighbor's  which  has  been  long  built  upon,  shall  erect  a  build- 
ing in  such  manner  as  to  interrupt  the  light  or  the  air  of  his 
neighbor's  house,  or  expose  it  to  injury  from  the  weather,  or  to 
unwholesome  smell"^. 


14  GENERAL   PRINCIPLES   AND   THEORY   OF   DAMAGES. 

But  this  subjection  of  the  use  of  a  man 's  own  property  to  the 
convenience  of  his  neighbor,  is  founded  upon  a  supposed  pre- 
existing right  in  his  neighbor  to  have  and  enjoy  the  privilege, 
which  by  such  act  is  impaired.  Therefore  it  is  that  by  the  an- 
cient common  law  no  man  could  maintain  an  action  against  the 
owner  of  an  adjoining  tract  of  land,  for  interrupting  the  pas- 
sage of  the  light  or  the  air  to  a  tenement,  unless  the  tenement 
thus  affected  was  ancient:  so  that  the  plaintiff  could  prescribe 
for  the  privilege,  of  which  he  had  been  deprived ;  upon  the  com- 
mon notion  of  prescription,  that  there  was  formerly  a  grant  of 
the  privilege,  which  grant  has  been  lost  by  lapse  of  time,  al- 
though the  enjoyment  of  it  has  continued. 

Now  in  such  case  of  a  grant  presumed,  it  shall  for  the  pur- 
poses of  justice  be  further  presumed,  that  it  was  from  the 
ancestor  of  the  man  interrupting  the  privilege;  or  from  those 
whose  estate  he  has;  so  as  to  control  him  in  the  use  of  his  own 
prjoperty,  in  any  manner  that  shall  interfere  with  or  defeat  an 
ancient  grant  thus  supposed  to  have  been  made.  This  is  the  only 
way  of  accounting  for  the  common-law  principle,  which  gives 
one  neighbor  an  action  against  another,  for  making  the  same 
use  of  his  property  which  he  has  made  of  his  own.  And  it  is 
a  reasonable  principle :  for  it  would  be  exceedingly  unjust  that 
successive  purchasers  or  inheritors  of  an  estate  for  the  space 
of  sixty  years,  with  certain  valuable  privileges  attached  to  it, 
should  be  liable  to  be  disturbed  by  the  representatives  or  suc- 
cessors of  those  who  originally  granted  or  consented  to,  or 
acquiesced  in  the  use  of  the  privilege. 

It  is  true  that  of  late  years  the  courts  in  England  have  sus- 
tained actions  for  the  obstruction  of  such  privileges  of  much 
shorter  duration  than  sixty  years.  But  the  same  principle  is 
preserved  of  the  presumption  of  a  grant.  And  indeed  the 
modern  doctrine,  with  respect  to  easements  and  privileges,  is 
but  a  necessary  consequence  of  the  late  decisions,  that  grants 
and  title  deeds  may  be  presumed  to  have  been  made,  although 
the  title  or  privilege  claimed  under  them  is  of  a  much  later 
date  than  the  ancient  time  of  prescription. 

The  plaintiff  cannot  pretend  to  found  his  action  upon  this 
principle ;  for  he  first  became  proprietor  of  the  land  in  1802, 
and  built  his  house  in  1804,  ten  years  before  the  commence- 
ment of  his  suit.  So  that  if  the  presumption  of  a  grant  were 
not  defeated  by  showing  the  commencement  of  his  title  to  be 


DAMNUM    ABSQUE   INJURIA.  15 

SO  recent;  yet  there  is  no  ease,  where  less  than  twenty  years 
has  entitled  a  building  to  the  qualities  of  an  ancient  building, 
so  as  to  give  the  owTier  a  right  to  the  continued  use  of  privi- 
leges, the  full  enjoyment  of  which  necessarily  trenches  upon 
his  neighbor's  right  to  use  his  own  property  in  the  way  he 
shall  deem  most  to  his  advantage.  A  man  who  purchases  a 
house,  or  succeeds  to  one,  which  has  the  marks  of  antiquity 
about  it,  may  well  suppose  that  all  its  privileges  of  right  ap- 
pertain to  the  house :  and  indeed  they  could  not  have  remained 
so  long  without  the  culpable  negligence,  or  friendly  acquiescence 
of  those,  who  might  originally  have  had  a  right  to  hinder  or 
obstruct  them.  But  a  man  who  himself  builds  a  house,  adjoin- 
ing his  neighbor's  land,  ought  to  foresee  the  probable  use  by 
his  neighbor  of  the  adjoining  land;  and  by  convention  with 
his  neighbor,  or  by  a  different  arrangement  of  his  house,  secure 
himself  against  future  interruption  and  inconvenience. 

This  seems  to  be  the  result  of  the  cases  anciently  settled  in 
England,  upon  the  subject  of  nuisance  or  interruption  of  privi- 
leges and  easements:  and  it  seems  to  be  as  much  the  dictate  of 
common  sense  and  sound  reason,  as  of  legal  authortiy. 

The  decisions  cited  by  the  counsel  for  the  plaintiff,  (1  Domat, 
309,  408 ;  Fitz.  N.  B.  183 ;  9  Co.  59 ;  Palmer,  536 ;  1  Eoll.  Abr. 
140;  ibid.  430;  Slingsby  v.  Barnard,  1  Roll.  Rep.  88;  2  Roll. 
Abr.  565 ;  2  Saund.  697 ;  Co.  Lit.  56 ;  1  Burr,  337 ;  6  D.  &  E. 
411;  7  East,  368;  1  B.  &  P.  405;  3  Wils.  461),  in  support  of 
this  action,  generally  go  to  establish  only  the  general  principle, 
that  a  remedy  lies  for  one  who  is  injured  consequentially  by 
the  acts  of  his  neighbor  done  on  his  own  property.  The  civil- 
law  doctrine  cited  from  Domat  will  be  found  upon  examination 
to  go  no  further  than  the  common  law  upon  this  subject.  For 
although  it  is  there  laid  dowTi,  that  new  works  on  a  man's 
ground  are  prohibited,  provided  they  are  hurtful  to  others, 
who  have  a  right  to  hinder  them:  and  that  the  person  erecting 
them  shall  restore  things  to  their  former  state,  and  repair  the 
damages;  from  whence  probably  the  common-law  remedy  of 
abating  a  nuisance  as  well  as  recovery  of  damages;  yet  this 
is  subsequently  explained  and  qualified  in  another  part  of  the 
same  chapter,  where  it  is  said,  that  if  a  man  does  what  he  has  a 
right  to  do  upon  his  own  land,  without  trespassing  upon  any 
law,  custom,  title  or  possession,  he  is  not  liable  to  damage  for 
injurious  consequences;  unless  he  does  it,  not  for  his  own  ad- 


16  GENERAL   PRINCIPLES    AND   THEORY    OF   DAMAGES. 

vantage,  but  maliciously;  and  the  damages  shall  be  considered 
as  casualties  for  which  he  is  not  answerable. 

The  common  law  has  adopted  the  same  [)rinciples,  considering 
the  actual  enjoyment  of  an  easement  for  a  long  course  of  years, 
as  establishing  a  right  which  cannot  with  impunity  be  impaired 
by  him  who  is  the  owner  of  the  land  adjoining. 

The  only  case  cited  from  common-law  authorities,  tending  to 
show  that  a  mere  priority  of  building  operates  to  deprive  the 
tenant  of  an  adjoining  lot  of  the  right  of  occupying  and  using 
it  at  his  pleasure,  without  being  subjected  to  damages  if  by  such 
use  he  should  injure  a  building  previously  erected,  is  that  of 
Slingsby  v.  Barnard,  cited  from  Rolle.  Sir  John  Slingsby 
brought  his  action  on  the  case  against  Barnard  and  Ball,  and 
declared  that  he  was  seized  of  a  dwelling-house  nuper  edificatus. 
and  that  Barnard  was  seized  of  a  house  next  adjoining;  and 
that  Barnard  and  Ball  under  him,  in  making  a  cellar  under 
Barnard's  house,  dug  so  near  the  foundation  of  the  plaintiff's 
house,  that  they  undermined  the  same,  and  one-half  of  it  fell. 
Judgment  upon  this  declaration  was  for  the  plaintiff,  no  objec- 
tion having  been  made  as  to  the  right  of  action,  but  only  to  the 
form  of  the  declaration. 

The  report  of  this  case  is  very  short  and  unsatisfactory;  it 
not  appearing  whether  the  defendant  confined  himself  in  his 
digging  to  his  o\yd.  land,  or  whether  the  house  then  lately  built 
w^as  upon  a  new  or  an  old  foundation.  Indeed  it  seems  impos- 
sible to  maintain  that  case  upon  the  facts  made  to  appear  in 
the  report,  without  denying  principles,  which  seem  to  have  been 
deliberately  laid  down  in  other  books,  equally  respectable  as 
authorities. 

Thus  in  Siderfin  ]  67,  upon  a  special  verdict  the  case  was  thus. 
A  having  a  certain  quantity  of  land,  erected  a  new  house  upon 
part  of  it,  and  leased  the  house  to  B  and  the  residue  of  the  land 
to  C  who  put  logs  and  other  things  upon  the  land  adjoining 
said  house,  so  that  the  windows  were  darkened,  etc.  It  was 
holden  that  B  could  maintain  case  against  C  for  this  injury. 
But  the  reason  seems  to  be  that  C  took  his  lease  seeing  that  the 
house  was  there,  and  that  he  should  not,  any  more  than  the 
lessor,  render  the  house  first  leased  less  valuable  by  his  obstruc- 
tions. It  was  however  decided  in  the  same  case,  that  if  one 
seized  of  land  lease  forty  feet  of  it  to  A  to  build  unon,  and  an- 
other forty  feet  to  B  to  build  upon,  and  one  builds  a  house,  and 


DAMNUM    ABSQUE   INJURIA.  17 

then  the  other  digs  a  cellar  upon  his  ground,  by  which  the  wall 
of  the  first  house  adjoining  falhi,  no  action  lies;  and  so,  they 
said,  it  was  adjudged  in  Pigott  &  Suries  case,  for  each  one  may 
make  what  advantage  he  can  of  his  own.  The  principle  of  this 
decision  is,  that  both  parties  came  to  the  land  with  equal  rights 
in  point  of  time  and  title;  and  that  he  who  first  built  his  house 
should  have  taken  care  to  stipulate  with  his  neighbor,  or  to 
foresee  the  accident  and  provide  against  it  by  setting  his  house 
sufficiently  within  his  line  to  avoid  the  mischief.  In  the  same 
case  it  is  stated,  as  resolved  by  the  court,  that  if  a  stranger  have 
the  land  adjoining  to  a  new  house,  he  may  build  new  houses, 
etc.,  upon  his  land,  and  the  other  shall  be  without  remedy,  when 
the  lights  are  darkened:  otherwise  when  the  house  first  built 
was  an  ancient  one. 

In  Rolle's  Abridgment,  565,  A,  seized  in  fee  of  copyhold  es- 
tate, next  adjoining  land  of  B,  erects  a  new  house  upon  his  copy- 
hold land,  and  a  part  is  built  upon  the  confines  next  adjoining 
the  land  of  B,  and  B  afterwards  digs  his  land  so  near  the  house 
of  A,  but  on  no  part  of  his  land,  that  the  foundation  of  the 
house,  and  even  the  house  itself  fall;  yet  no  action  lies  for  A 
against  B,  because  it  was  the  folly  of  A,  that  he  built  his  house 
so  near  to  the  land  of  B.  For  by  his  o^vn  act  he  shall  not  hinder 
B  from  the  best  use  of  his  o^vn  land  that  he  can.  And  after 
verdict,  judgment  was  arrested.  The  reporter  adds  however, 
that  it  seems  that  a  man,  who  has  land  next  adjoining  my  land, 
cannot  dig  his  land  so  near  mine,  as  to  cause  mine  to  slide  into 
the  pit ;  and  if  an  action  be  brought  for  this,  it  will  lie. 

Although  at  first  view  the  opinion  of  Rolle  seems  to  be  at 
variance  with  the  decision  which  he  has  stated,  yet  they  are 
easily  reconciled  with  sound  principles.  A  man  in  digging 
upon  his  owa  land  is  to  have  regard  to  the  position  of  his  neigh- 
bor's land,  and  the  probable  consequences  to  his  neighbor,  if  he 
digs  too  near  his  line ;  and  if  he  disturbs  the  natural  state  of 
the  soil,  he  shall  answer  in  damages:  but  he  is  answerable  only 
fcr  the  natural  and  necessary  consequences  of  his  act,  and  not 
for  the  value  of  a  house  put  upon  or  near  the  line  by  his  neighbor. 
For  in  so  placing  the  house,  the  neighbor  was  in  fault,  and 
ought  to  have  taken  better  care  of  his  interest. 

If  this  be  the  law,  the  case  before  us  is  settled  by  it :  and  we 

2 


18  GENERAL   PRINCIPLES   AND   THEORY   OF   DAMAGES. 

have  not  been  able  to  discover  that  the  doctrine  has  ever  been 
overruled,  nor  to  discern  any  good  reason  why  it  should  be. 

The  plaiutitt'  purchased  his  land  in  1802.  At  that  time  the 
inhabitants  of  Boston  were  in  possession,  and  the  owners  of  the 
adjoining  land  now  owned  by  the  defendants.  The  plaintiff 
built  his  house  within  two  feet  of  the  western  line  of  the  lot, 
knowing  that  the  town,  or  those  who  should  hold  under  it,  had 
a  right  to  build  equally  near  to  the  line,  or  to  dig  down  into 
the  soil  for  any  other  lawful  purpose.  He  Imew  also  the  shape 
and  nature  of  the  ground,  and  that  it  was  impossible  to  dig 
there  without  causing  excavations.  He  built  at  his  peril:  for 
it  was  not  possible  for  him,  merely  by  building  upon  his  own 
ground,  to  deprive  the  other  party  of  such  use  of  his,  as  he 
should  deem  most  advantageous.  There  was  no  right  acquired 
by  his  ten  years'  occupation,  to  keep  his  neighbor  at  a  convenient 
distance  from  him.  He  could  not  have  maintained  an  action 
for  obstructing  the  light  or  air :  because  he  should  have  known 
that,  in  the  course  of  improvements  on  the  adjoining  land,  the 
light  and  air  might  be  obstructed.  It  is  in  fact  damnum  absque 
injuria. 

By  the  authority  above  cited  however,  it  would  appear  that 
for  the  loss  of,  or  injury  to  the  soil  merely,  his  action  may  be 
maintained.  The  defendants  should  have  anticipated  the  con- 
sequence of  digging  so  near  the  line;  and  they  are  answerable 
for  the  direct  consequential  damage  to  the  plaintiff,  although 
not  for  the  adventitious  damage  arising  from  his  putting  his 
house  in  a  dangerous  position. 

Note.  "The  doctrine  of  damnum  absque  injuria  is  recog- 
nized as  fundamental  in  New  York  and  Federal  courts."  Muhl- 
ker  V.  Harlem  R.  R.  Co.,  197  U.  S.  557. 


II.     CLASSIFICATION  OF  DAMAGES. 

1.     Nominal  Damages. 
WOOD  V.  WAUD. 

Exchequer,  1849.     3  Ex.  748. 

Pollock,  C.  B.  *  *  *  The  fact,  as  found  by  the  jury,  is, 
that  the  defendants  (whose  works  have  been  erected  within 
twenty  years,  and  who  have  do  right,  by  long  enjoyment  or  grant, 
so  to  do)  have  fouled  the  water  of  the  natural  stream  by  pour- 
ing in  soap  suds,  wooleombers'  suds,  etc.;  but  that  pollution 
of  the  natural  stream  has  done  no  actual  damage  to  the  plain- 
tiffs, because  it  was  already  so  polluted  by  similar  acts  of  mill- 
owTiers  above  the  defendant's  mills,  and  by  dyers  still  further 
up  the  stream,  and  some  sewers  of  the  town  of  Bradford;  that 
the  wrongful  act  of  the  defendants  made  no  practical  differ- 
ence, that  is,  that  the  pollution  by  the  defendants  did  not  make 
it  less  applicable  to  useful  purposes  than  such  water  was  before. 
AVe  think,  notwithstanding,  that  the  plaintiffs  have  received 
damage  in  point  of  law.  They  had  a  right  to  the  natural  stream 
flowing  througli  the  land,  in  its  natural  state,  as  an  incident 
to  the  right  to  the  land,  on  which  the  watercourse  flowed,  as  w411 
be  hereafter  more  fully  stated;  and  that  right  continues,  except 
so  far  as  it  may  have  been  derogated  from  by  user  or  by  grant 
to  the  neighboring  landowTiers. 

This  is  a  case,  therefore,  of  an  injury  to  a  right.  The  defend- 
ants, by  continuing  the  practice  for  twenty  years,  might  estab- 
lish the  right  to  the  easement  of  discharging  into  the  stream 
the  foul  water  from  their  works.  If  the  dyeworks  and  other 
manufactories,  and  other  sources  of  pollution  above  the  plain- 
tiffs, should  be  afterwards  discontinued,  the  plaintiffs,  who  would 
otherwise  have  had,  in  that  case,  pure  water,  would  be  com- 
pellable to  submit  to  this  nuisance,  which  then  would  do  serious 
damage  to  them.     We  think,  therefore,  that  the  verdict  must 

19 


20  CLASSIFICATION  OF  DAMAGES. 

be  entered  for  the  plaintiffs  on  every  part  of  not  guilty  to  the 
first  count.     *     *     * 

Sole.  Where  there  has  been  an  injury  to  a  right,  an  action 
lies,  though  there  has  been  no  appreciable  damage.  Alexander 
V.  Kerr,  2  Rawle,  83;  Parker  v.  Griswold,  17  Conn.  288. 


JEWETT  V.  WHITNEY. 

Maine,  1857.    43  Me.  242. 

This  action  is  trespass  qua  re  clausum  and  comes  on  report  of 
May,  J.,  presiding  at  7m i  prius. 

The  plaintiff  for  some  time  prior  to  July,  1834,  had  been  in 
possession  of  the  mill,  which  is  the  property  in  dispute,  taking 
one-half  of  the  profits  of  the  same,  at  which  time  the  defendant 
took  possession  of  plaintiff's  part,  and  received  his  proportion  of 
the  earnings.  The  mill  was  soon  torn  down  and  rebuilt  by  de- 
fendant and  his  co-tenants,  using  so  much  of  the  old  as  was 
proper  for  the  new  mill.  Whereupon  this  action  is  brought  for 
expelling  the  plaintiff,  tearing  down  the  mill,  converting  the 
same,  etc. 

]\Iay,  J.  *  *  *  The  only  remaining  question  is  that  of 
damages.  The  proof  shows  that  the  mill,  standing  on  the 
premises  at  the  time  when  the  defendant  took  possession,  in 
July,  1854,  had  become  nearly  worthless.  It  was  so  rotten  that 
it  could  not  be  repaired,  and  the  witness,  Lebroke,  testifies  that 
it  was  almost  impossible  to  use  it.  In  its  then  condition  the 
profits  of  it  could  not  have  exceeded  the  cost  of  the  repairs. 
Under  these  circumstances  the  defendant  co-operated  with  the 
co-tenants  of  the  plaintiff  in  tearing  down  the  old  mill  and 
erecting,  at  an  expense  of  more  than  two  thousand  dollars,  a 
new  one  in  its  stead.  So  far  as  the  materials  obtained  from  the 
old  mill  were  of  value,  and  would  answer,  they  were  put  into  the 
new.  While  the  plaintiff  may,  possibly,  have  lost  some  imme- 
diate profits,  before  the  date  of  his  writ,  by  his  expulsion  from 
the  mill,  he  has  largely  gained  in  the  increased  value  of  his  estate. 
His  damages,  therefore,  can  be  only  nominal. 

Judgment  for  the  plaintiff  for  one  dollar. 


NOMINAL    DAMAGES.  21 

TUFTS  V.  BENNETT. 
Massachusetts,  1895,     163  Mass.  398. 

Contract.  To  recover  the  purchase  price  of  goods  sold  by  the 
plaintiff  to  the  defendant.  Judgment  was  given  for  the  plaintiff 
in  the  sum  of  one  dollar.     The  plaintiff  alleged  exceptions. 

Morton,  J.  *  *  *  Part  of  the  goods  ordered  were  kept  in 
stock  by  the  plaintiff',  part  were  to  be  manufactured  by  him, 
part  to  be  purchased  elsewhere,  and  some  labor  and  stock  were  to 
be  expended  in  renovating  certain  apparatus  for  the  defend- 
ant.    *     *     * 

According  to  the  contract  the  defendant,  upon  delivery,  was 
to  honor  a  sight  draft  for  $400,  and  to  execute  to  the  plaintiff 
notes  for  the  balance,  and  the  title  to  the  goods  was  to  remain 
in  the  plaintiff  till  the  notes  were  paid.  The  defendant  has  never 
honored  any  draft  nor  executed  any  notes,  and  the  action  is 
brought  for  the  breach  of  his  agreement  in  failing  to  do  so.  The 
court  found  that  the  defendant  had  repudiated  the  contract. 

The  rule  seems  to  be  pretty  clearly  established  that  the  measure 
of  damages  in  such  a  case  is  the  difference  be  ween  the  market 
value  of  the  goods  at  the  time  and  place  of  delivery  and  the 
contract  price.     (Citing  authorities.) 

No  evidence,  however,  was  introduced  hy  the  plaintiff  as  to 
such  difference,  he  relying  apparently  upon  his  contention  that 
the  measure  of  damages  was  the  contract  price.  The  only  thing, 
therefore,  which  the  court  could  do,  was  to  award  nominal  dam- 
ages, which  it  did.  Exceptions  overruled. 


LOWE  V.  TURPIE. 

Indiana,  1896.     147  Ind.  652. 

Plaintiff  contracted  to  pay  certain  debts,  liens,  on  real  prop- 
erty held  by  him  as  security  and  belonging  to  Turpie,  but  after- 
ward refused  to  do  so.  The  realty  was  subsequently  sold  to  pay 
these  obligations,  and  Turpie  snes  fbr  damages  by  reason  thereof. 
He  was  aware  of  Lowe's  refusal  to  perform  prior  to  the  time  of 
the  bringing  of  the  suits  to  enforce  the  incumbrances. 

Monks,  J.     *     *     *     It  is  clear,  we  think,  that  the  measure 


22  CLASSIFICATION  OF  DAMAGES. 

of  damages  for  the  breach  by  appellant  of  his  agreement  to  ad- 
vance money  to  pay  liens,  etc.,  set  forth  in  the  finding,  is  the  same 
as  for  breach  of  a  contract  to  loan  money  direct.     *     *     * 

It  is  the  rule,  settled  beyond  controversy,  that  the  damages  to 
be  recovered  must  be  the  natural  and  proximate  consequences 
of  the  breach  of  the  contract.  Damages  which  are  remote  or 
speculative  cannot  be  recovered.     (Citing  authorities). 

"When  one  is  indebted  to  another,  and  fails  to  pay  the  same 
when  due,  the  damages  for  the  delay  in  payment  are  provided 
for  in  the  allowance  of  interest.  This  is  the  measure  of  damages 
adopted  by  the  law  in  all  actions  by  the  creditor  against  his 
debtor.     (Citing  authorities). 

Appellees  admit  the  measure  of  damages  for  the  failure  of  a 
debtor  to  pay  money  when  due  to  be  as  stated,  but  insist  that 
where  the  obligation  to  pay  money  is  special,  and  has  reference 
to  other  objects  than  the  mere  discharge  of  debts,— as  in  this  case, 
to  advance  or  loan  money  to  pay  taxes  and  discharge  liens, — 
damages  beyond  interest  for  delay  of  payment,  according  to 
the  actual  injury,  may  be  recovered;  citing  1  Sutherland  on 
Damages  p.  164  §  77,  where  the  rule  stated  by  appellees  is  ap- 
proved. The  author,  however,  in  the  same  section,  says :  ' '  Where 
one  person  furnishes  money  to  discharge  an  incumbrance  upon 
the  land  of  the  person  furnishing  the  money,  and  the  person  un- 
dertaking to  discharge  it  neglects  to  do  so,  and  the  land  is  lost 
to  the  owner  by  reason  of  the  neglect,  the  measure  of  damages 
may  be  the  money  furnished,  with  interest,  or  the  value  of  the 
land,  according  to  circumstances.  If  the  landowner  has  knowl- 
edge of  the  agent's  failure  in  time  to  redeem  the  land  himself, 
the  damages  will  be  the  money  furnished,  with  interest.  But  if 
the  lando^^^ler  justly  relies  upon  his  agent  to  whom  he  has  fur- 
nished money  to  discharge  the  incumbrance,  and  the  land  is 
lost  without  his  knowledge,  and  solely  through  the  fault  of  the 
agent,  the  latter  will  be  liable  for  the  value  of  the  land  at  the 
time  it  was  lost."    See  Fontaine  v.  Lumber  Co.,  109  Mo.  55. 

In  Blood  v.  Wilkins,  43  Iowa,  565,  Blood  was  the  owner  of 
certain  land  in  Jones  county,  and  conveyed  the  same  to  Wilkins 
as  security  for  money  advanced  and  to  be  advanced  by  "Wilkins, 
and  applied  in  payment  of  certain  mortgages  and  tax  liens  upon 


NOMINAL   DAMAGES.  23 

the  property.  Part  of  the  money  was  paid  out  directly  by  Wil- 
kins  in  discharge  of  liens,  and  a  part  was  retained  by  him.  At 
the  time  of  the  loan  the  land  had  been  sold  for  taxes,  but  the 
period  for  redemption  had  not  yet  expired.  The  amomit  bor- 
rowed was  enough  to  discharge  all  liens,  and  to  redeem  from  said 
sales.  Wilkins,  after  the  execution  of  said  deed  given  as  secur- 
ity, retained  in  his  hands  the  money  necessary  to  redeem,  under 
an  agreement  with  Blood  that  he  would  redeem.  Wilkins  failed 
to  redeem,  and  tax  titles  accrued  against  the  land,  whereby 
it  was  lost  to  Blood,  except  40  acres.  The  court,  in  speaking 
of  the  measure  of  damages,  said:  "There  only  remains  to  be 
considered  what  is  the  measure  of  liability.  When  one  person 
furnishes  the  money  to  another  to  discharge  an  incumbrance 
from  the  land  of  the  person  furnishing  the  money,  and  the  per- 
son undertaking  to  discharge  the  incumbrance  neglects  to  do  it, 
and  the  land  is  lost  to  the  owner  by  reason  of  the  incumbrance, 
the  measure  of  damages  may  be  the  money  furnished,  with  in- 
terest, or  the  value  of  the  land  lost,  according  to  circumstances. 
If  the  landowner  bas  knowledge  of  his  agent's  failure  in  time  to 
redeem  the  land  himself,  his  damages  will  be  the  money  furnished, 
with  interest.  But  if  the  landowner  justly  relies  upon  his  agent, 
to  whom  he  has  furnished  money  to  discharge  the  incumbrances, 
and  the  land  is  lost  without  his  knowledge,  and  solely  through 
the  fault  of  the  agent,  then  the  agent  will  be  liable  for  the  value 
of  the  land  lost. ' '  This  language  was  adopted  by  the  author  of 
Sutherland  on  Damages,  in  stating  the  rule.  See  1  Sutherland 
Damages,  p.  164,  §  77.     *     *     * 

We  think  the  rule  concerning  the  measure  of  damages  in 
cases  where  one  person  furnishes  the  money  to  another  to  dis- 
charge liens  on  the  land  of  the  one  furnishing  the  money  is  cor- 
rectly stated  in  Blood  v.  Wilkins,  supra. 

In  an  action  for  breach  of  a  contract  to  loan  money  to  pay 
liens  or  incumbrances,  no  more  than  nominal  damages  can  be 
recovered  unless  the  facts  showing  special  damages  are  alleged 
and  proven.    Turpie  v.  Lowe,  supra. 

When  the  person  who  contracted  to  make  the  loan  neglects 
or  refuses  to  do  so,  and  the  owner  is  compelled  to  procure  the 
money  elsewhere,  the  measure  of  damages  is  the  difference,  if  any, 
between  the  interest  he  contracted  to  pay,  and  what  he  was  com- 
pelled to  pay  to  procure  the  money ;  not  exceeding,  perhaps,  the 
highest  rate  allowed  by  law.    2  Sedg.  Dam.  §  622. 


24  CLASSIFICATION  OF  DAMAGES. 

It  is  not  necessary  to  determine  whether  the  measure  of  dam- 
ages for  breach  of  a  contract  to  loan  money  to  pay  liens  in 
case  the  land  is  lost  is  the  same  as  in  a  case  of  the  neglect  of 
one  to  whom  money  is  furnished  by  the  landowner  to  pay  liens 
or  incumbrances,  for  the  reason  that,  if  it  were  conceded  that 
the  measure  of  damages  in  this  case  was  the  same  as  it  would 
have  been  had  the  Turpios  furnished  appellant  the  money  to 
discharge  all  said  debts  and  incumbrances,  yet,  under  the  facts 
as  stated  in  the  special  finding,  the  Turpies  would  not  be  en- 
titled to  special  damages.      *     *     * 

To  entitle  any  one  to  recover  more  than  nominal  damages  for 
a  breach  of  contract  to  loan  money  to  pay  incumbrances,  it  is 
necessary  not  only  to  allege  and  prove  the  contract  to  loan  the 
money,  and  its  breach,  and  that  the  person  who  agreed  to  make 
the  loan  knew  the  purpose  for  which  it  was  to  be  used,  and  the 
Qecessity  therefor,  but  also  that  the  land  was  lost  to  the  owner 
by  reason  of  such  liens  or  incumbrances,  and  without  his  knowl- 
edge, and  solely  through  the  fault  of  the  person  who  was  to 
loan  the  money,  or,  if  the  landounier  had  notice  of  the  neglect 
or  refusal  to  loan  the  money,  that  it  was  at  such  a  time  as  to 
deprive  him  of  the  opportunity  to  procure  the  money  elsewhere, 
and  pay  said  liens  or  incumbrances,  or  redeem  the  land,  if  sold. 
*     *     * 

In  contemplation  of  law,  money  is  always  in  the  market,  and 
procurable  at  the  lawful  rate  of  interest.  And  if  the  owner  of 
real  estate,  who  has  a  contract  with  another  to  loan  him  money 
to  pay  liens  or  incumbrances  on  his  land,  who  refuses  to  do  so, 
has  knowledge  of  such  refusal  in  time  to  give  him  an  opportunity 
to  seek  for  it  elsewhere,  the  fact  that  he  cannot  procure  the 
money,  on  account  of  being  in  embarrassed  circumstances,  will 
not  entitle  him  to  recover  more  than  nominal  damages ;  for  the 
reason  that  no  party's  condition,  in  respect  to  the  measure  of 
damages,  is  any  worse,  for  having  failed  in  his  engagement  to  a 
person  whose  affairs  are  embarrassed,  than  if  the  same  result  had 
occurred  with  one  in  prosperous  or  affluent  circumstances. 
(Citing  authorities).     *     *     * 

It  follows,  therefore,  that  upon  the  facts  found  the  Turpies 
w^ere  not  entitled  to  more  than  nominal  damages  for  the  breach 
by  appellant  of  his  contract  to  loan  money  to  pay  liens  and  in- 
cumbrances. As  the  Turpies  were  not  entitled  to  recover  for 
the  breach  of  said  contracts  to  loan  money,  it  is  not  necessary 


NOMINAL   DAMAGES.  25 

to  determine  whether  or  not  the  same  are  void  for  uncertainty. 
*  *  *  For  the  reasons  given  the  said  four  judgments  are 
reversed. 


THE  COLUMBUS  COMPANY,  LIMITED  v.  CLOWES. 

L.  R.  1  K.  B.  1903,  244. 

Wright,  J.  This  a  somewhat  singular  case,  and  one  which, 
as  far  as  I  can  ascertain,  is  not  exactly  covered  by  authority. 
The  plaintiffs  employed  the  defendant,  who  was  an  architect,  to 
make  plans  of  a  building  to  be  erected  on  a  site  of  which  the 
plaintiffs  were  the  lessees.  The  defendant  appears  to  have  been 
informed  by  some  person,  who  had  no  authority  from  the  plain- 
tiffs to  give  any  such  information,  that  the  site  in  question  was 
of  certain  dimensions,  which  were  in  fact  considerably  less  than 
the  real  dimensions  of  the  site.  The  defendant  assumed  this  in- 
formation to  be  correct,  and,  without  taking  any  steps  to  meas- 
ure and  survey  the  site,  drew  his  plans  on  that  assumption.  It 
is  not  contended  that  he  was  right  in  doing  so,  and  I  think  it 
was  practically  admitted  that  it  was  his  duty  to  have  surveyed 
the  site  and  measured  it,  and  taken  out  the  proper  dimensions 
before  proceeding  with  his  plans.  The  consequences  of  the  mis- 
take might  have  been  disastrous ;  but  as  a  matter  of  fact  the  mis- 
take had  no  effect  on  the  position  of  the  plaintiffs,  except  that 
they  paid  him  for  plans  which  were  in  fact  incorrect.  The  plain- 
tiffs contend  that  they  are  entitled  to  get  back  the  amount  which 
they  have  paid  for  the  plans  because  the  plans  are  worthless,  and 
that  therefore  there  is  a  total  failure  of  consideration.  Alter- 
natively, they  say  that  they  are  entitled  to  damages  for  the 
negligence  of  the  defendant. 

I  have  come  to  the  conclusion  that  there  was  not  a  complete 
failure  of  consideration.  The  design  of  the  plans  is,  I  think, 
available  to  some  extent  for  a  site  of  the  real  size.  The  quanti- 
ties have  been  taken  out  in  accordance  with  the  plans,  and  on 
the  evidence  I  am  of  opinion  that  a  small  addition  to  those 
quantities  would  alone  be  necessary  in  case  of  a  building  of  the 
proper  size.  Borings  have  been  made  with  a  view  to  ascertain- 
ing the  necessary  depth  for  the  foundations,  and  a  good  deal 
has  been  done  which  is  really  of  the  same  value  as  if  the  plans 
had  been  correct.  The  plaintiffs'  claim  for  damages  has,  how- 
ever, to  be  considered.     I  think  it  is  plain  that  they  are  entitled 


26  CLASSIFICATION  OF  DAMAGES. 

to  some  damages.  The  defendant  acted  negligently,  and  in  the 
cases  such  as  those  against  solicitors  where  negligence  is  proved 
the  plaintitt'  is  entitled  to  some  damages.  But,  in  order  to  say 
what  those  damages  should  be,  it  is  necessary  to  divide  the  case. 
With  regard  to  the  borings  and  other  work  done  by  the  defend- 
ant, I  think,  as  I  have  said,  that  the  plaintiffs  got  full  value. 
But  what  as  to  the  plans  themselves?  I  have  no  evidence  be- 
fore me  that  the  plans,  whether  correct  or  not,  have  any  value 
in  themselves,  and  I  am  therefore  thrown  back  on  general  prin- 
ciples. It  seems  to  me  that  the  most  that  the  plaintiffs  can  get 
is  the  reasonable  cost  of  making  the  plans  good.  But  there 
comes  the  difficulty.  The  defendant  himself  would  have  made 
the  plans  good  without  any  charge.  Indeed,  he  would  have  been 
bound  to  do  so.  If,  however,  the  plaintiffs  had  called  in  another 
architect,  he  would  in  all  probability  have  insisted  on  com- 
mencing the  plans  de  novo,  and  would  have  refused  to  make 
any  use  of  the  defendant's  plans.  But  would  that  have  been  a 
reasonable  course  to  pursue  ?  I  do  not  think  that  it  would.  One 
of  the  first  principles  of  the  law  of  damages  is  that  a  plaintiff 
who  has  suffered  damage  must  act  reasonably,  and  not  incur 
unnecessary  expense  against  the  defendant.  It  is  clear  that  the 
plaintiffs  suffered  no  real  damage,  since  they  were  never  in  a 
financial  position  to  make  use  of  the  plans.  I  think,  therefore, 
that  they  are  only  entitled  to  nominal  damages. 

The  question  of  quantities  is,  however,  on  a  different  basis. 
They  were  necessary  in  order  to  enable  the  plaintiffs  to  get 
tenders  for  the  execution  of  the  work,  and  I  think  that  the 
plaintiffs  are  clearly  entitled  to  the  cost  of  adapting  them.  The 
evidence  shows  me  that  the  cost  of  doing  so  would  be  40  1. ;  and 
I  therefore  give  judgment  for  the  plaintiffs  for  401.  in  respect 
of  the  quantities,  and  40s.  in  respect  of  the  plans.  Whether  the 
action  be  one  of  contract  or  of  tort,  it  is  clearly  one  which  is 
rightly  brought  in  the  High  Court. 

Judgment  for  plaintiffs. 

In  the  old  and  leading  case  of  Ashby  v.  White,  2  Ld.  Raym.  938,  Lord 
Chief  Justice  Holt  held  that  if  a  free  burgess  of  a  municipal  corpora- 
tion has  a  right  to  vote  for  a  member  of  the  House  of  Commons  and  is 
refused  this  right  by  the  election  officer,  an  action  on  the  case  will  lie 
against  sucli  officer. 

In  the  celebrated  case  of  the  Tunbridge  dippers,  Weller  v.  Baker,  2 
Wils.    414,  where  the  plaintiff  received  only  gratuities  from  visitors  at 


AVOIDABLE   DAMAGES.  27 

certain  medicinal  springs,  it  was  held  that  an  action  would  lie  for  dis- 
turbing the  dippers  in  their  employment,  as  an  action  on  the  case  will 
lie  for  a  possibility  of  a  damage  and  injury. 

In  Has'S  v.  W.  &  E.  P.  St.  R.  R.  Co.  204  Pa.  488,  it  was  held  that 
where  a  railroad  gels  a  right  of  way  and  agrees  to  make  improvements, 
and  sul>sequently  abandons  the  location,  the  abutting  owner  can  get 
nominal  damages  only. 

In  Dewire  v.  Hanley,  79  Conn.  4.54,  where  a  right  of  way  was  ob- 
structed, but  no  pecuniary  loss  or  expense  was  shown,  nominal  damages 
were  awarded. 

In  Owen  v.  O'Reilly,  20  Mo.  603,  in  an  action  for  wages,  where  it  was 
proved  that  services  were  rendered  but  no  value  was  established,  nomi- 
nal damages  were  awarded. 

But,  where  land  was  sold  under  false  representations,  which  neverthe- 
less did  not  result  in  actual  loss  to  plaintiff,  no  damages  were  awarded, 
Thompson  v,  Newell,  118  Mo.  App.  405. 

In  a  case  of  nuisance,  where  no  actual  damage  was  shown,  nominal 
damages  were  allowed.     Swift  v.  Broyles,  115  Ga.  885. 

Nominal  damages  may  be  awarded  against  a  banker  for  refusing  to 
honor  his  depositor's  check,  though  no  actual  damage  be  shown  at  the 
trial :  so  held  Lord  Chief  Justice  Tenterden  in  Marzetti  v.  Williams, 
1  Barn.  &  Adol.  415. 

Poland,  J.,  in  Paul  v.  Slason,  22  Vt.  231,  says:  "It  is  true,  that  by 
the  theory  of  the  law,  wherever  an  invasion  of  a  right  is  established, 
through  no  actual  damage  be  shown,  the  law  infers  a  damage  *  *  *  and 
gives  nominal  damages." 

On  the  subject  of  nominal  damages  see  also  Six  Carpenters  Case, 
8  Coke  432;  Wartman  v.  Swindell,  .54,  N.  J.  L.  589;  Chamberlain  v. 
Parker,  45  N.  Y.  569;  State  v.  Davis,  117  Ind.  307;  Jones  v.  King,  33 
Wis.  422 ;  Plopevale  Electric  Co.  v.  Electric  Storage  Battery  Co.  184  N.  Y. 
356;  Maher  v.  Wilson,  139  Cal.  514;  Bourdette  v.  Sieward,  107  La.  258; 
Davis  v.  Ark.  So.  R.  Co.  117  La.  320;  Browning  v.  Simons,  17  Ind.  45; 
Grau  v.  Gran,  37  Ind.  635 ;  Diers  v.  Edwards,  23  Ken.  L.  R.  500 ;  Lance 
V,  Apgar,  60  N.  J.  L.  447;  N.  J.  School  and  Church  Furniture  Co.  v. 
Board  of  Education,  58  N.  J.  L.  646;  Boogher  v.  Bryant,  9  Mo.  App. 
592;   Sproul  v.  Huston,  42  Wash.  lOG. 


2.     Avoidable  Damages. 
CLARK  V.  MARSIGLIA. 

New  York,  1845.     1   Denio,  317. 

Error  from  the  New  York  common  pleas.  Marsiglia  sued 
Clark  in  the  court  below  in  assumpsit,  for  work,  labor,  and 
materials,  in  cleaning,  repairing,  and  improving  sundry  paint- 


28  CLASSIFICATION   OK   DAMACES. 

ings  belonging  to  the  defendant.  The  defendant  pleaded  non 
assumpsit. 

The  plaintift'  proved  that  a  number  of  paintings  were  delivered 
to  him  by  the  defendant  to  clean  and  repair,  at  certain  prices 
for  each.  They  were  delivered  upon  two  occasions.  As  to  the 
first  parcel,  for  the  repairing  of  which  the  price  was  seventy-five 
dollars,  no  defence  was  ofl'ered.  In  respect  to  the  other,  for 
which  the  plaintiff  charged  one  hundred  and  fifty-six  dollars,  the 
defendant  gave  evidence  tending  to  show  that  after  the  plaintiff 
had  commenced  work  upon  them,  he  desired  him  not  to  go  on, 
as  he  had  concluded  not  to  have  the  work  done.  The  plaintiff, 
notwithstanding,  finished  the  cleaning  and  repairing  of  the  pic- 
tures, and  claimed  to  recover  for  doing  the  whole,  and  for  the 
materials  furnished,  insisting  that  the  defendant  had  no  right 
to  countermand  the  order  which  he  had  given.  The  defendant's 
counsel  requested  the  court  to  charge  that  he  had  the  right  to 
countermand  his  instructions  for  the  work,  and  that  the  plain- 
tiff could  not  recover  for  any  work  done  after  such  countermand. 

The  court  declined  to  charge  as  requested,  but,  on  the  contrary, 
instructed  the  jury  that  inasmuch  as  the  plaintiff  had  commenced 
the  work  before  the  order  was  revoked,  he  had  a  right  to  finish 
it,  and  to  recover  the  whole  value  of  his  labor  and  for  the  ma- 
terials furnished.  The  jury  found  their  verdict  accordingly,  and 
the  defendant's  counsel  excepted.  Judgment  was  rendered  upon 
the  verdict. 

Per  Curiam.  The  question  does  not  arise  as  to  the  right  of 
the  defendant  below  to  take  away  these  pictures,  upon  which  the 
plaintiff  had  performed  some  labor,  without  payment  for  what 
he  had  done,  and  his  damages  for  the  violation  of  the  contract, 
and  upon  that  point  we  express  no  opinion.  The  plaintiff  was 
allowed  to  recover  as  though  there  had  been  no  countermand  of 
the  order;  and  in  this  the  court  erred.  The  defendant,  by  re- 
quiring the  plaintiff  to  stop  work  upon  the  paintings,  violated  his 
contract,  and  thereby  incurred  a  liability  to  pay  such  damages 
as  the  plaintiff  should  sustain.  Such  damages  would  include  a 
recompense  for  the  labor  done  and  materials  used,  and  such 
further  sum  in  damages  as  might,  upon  legal  principles,  be 
assessed  for  the  breach  of  the  contract :  but  the  plaintiff  had  no 
right,  by  obstinately  persisting  in  the  work,  to  make  the  penalty 
upon  the  defendant  greater  than  it  would  otherwise  have  been. 

To  hold  that  one  who  employs  another  to  do  a  piece  of  work  is 


AVOIDABLE   DAMAGES.  29 

bound  to  suffer  it  to  be  done  at  all  events,  would  sometimes  lead 
to  great  injustice.  A  man  may  hire  another  to  labor  for  a  year, 
and  within  the  year  his  situation  may  be  such  as  to  render  the 
work  entirely  useless  to  him.  The  party  employed  cannot  persist 
m  working,  though  he  is  entitled  to  the  damages  consequent  upon 
his  disappointment.  So  if  one  hires  another  to  build  a  house, 
and  subsequent  events  put  it  out  of  his  power  to  pay  for  it,  it  is 
commendable  in  him  to  stop  the  work,  and  pay  for  what  has  been 
done  and  the  damages  sustained  by  the  contractor.  He  may  be 
under  a  necessity  to  change  his  residence ;  but  upon  the  rule  con- 
tended for,  he  would  be  obliged  to  have  a  house  which  he  did  not 
need  and  could  not  use.  In  all  such  cases  the  just  claims  of  the 
party  employed  are  satisfied  when  he  is  fully  recompensed  for  his 
part  performance  and  indemnified  for  his  loss  in  respect  to  the 
part  left  unexecuted ;  and  to  persist  in  accumulating  a  larger  de- 
mand is  not  consistent  with  good  faith  towards  the  employer. 
The  judgment  must  be  reversed,  and  a  venire  de  novo  awarded. 

Judgment  reversed. 


SULLIVAN  V.  j\IcMILLAN. 

Florida.  1896.     37  Fla.   134. 

McMillan  and  Wiggins  agreed  to  cut  and  deliver  to  Sullivan, 
since  deceased,  all  the  logs  of  certain  specified  dimensions  and 
free  from  certain  specified  defects  growing  upon  certain  de- 
scribed lands  of  the  decedent.  IMany'logs  were  duly  delivered 
pursuant  to  the  contract;  but,  following  the  death  of  Sullivan, 
his  representative  refused  to  receive  any  further  logs,  where- 
upon this  action  was  brought  for  damages  sustained  by  Mc- 
Millan and  Wiggins  under  the  contract.  The  appellants  sought 
to  prove  what  gains  and  profits  were  made  by  the  appellees  by 
their  own  labor  and  the  use  of  teams  in  such  other  work  and 
contracts  during  the  time  that  it  would  have  taken  them  to  per- 
form the  contract  with  the  appellant's  testator,  and  for  the 
breach  of  which  the  suit  was  brought.  The  Court  below  ex- 
cluded such  evidence. 

LronoN,  J.  It  is  urged  by  appellants  that  the  plaintiffs,  when 
they  received  notice  that  the  defendants  would  not  further  com- 
ply with  or  perform  the  contract,  should  have  done  all  that  rea- 
sonably lay  within  their  power  to  protect  themselves  from  loss 
by  seeking  another  contract  of  like  character,   and  that,   the 


iiO  CLASSIFICATION  OF  DAMAGES. 

plaiutilt's  having  sought  and  obtained  such  a  contract  imme- 
diately after  the  breach  sued  upon,  the  defendants  were  entitled 
to  have  a  proportionate  amoimt  of  the  profits  applied  in  mitiga- 
tion of  the  damages  for  which  they  w^re  liable.  Otherwise  it  is 
contended  that  the  plaintiffs  would  make  two  profits  for  the 
same  time,  and  with  the  same  teams,  and  that  speculation 
would  be  substituted  for  compensation,  which  is  the  basis  of  the 
law  of  damages  for  breaches  of  contract.  These  propositions 
are  undoubtedly  correct  when  applied  to  some  classes  of  cases. 
They  have  special  reference  to  contracts  for  personal  services, 
or  for  the  use  of  some  special  instrumentality,  either  with  or 
wdthout  connection  with  such  personal  services.  Thus,  in  a 
contract  for  teaching  in  a  school,  which  was  broken  by  a  refusal 
to  receive  the  services,  it  was  held  to  be  the  plaintiff's  duty  to 
make  reasonable  exertion  to  obtain  other  like  employment  in 
the  same  vicinity,  and  thus  mitigate  the  damages.  Gillis  v. 
Sp'ace,  63  Barb.  (N.  Y.)  177;  Benziger  v.  Miller,  50  Ala.  206. 
The  same  rule  was  laid  down  for  a  similar  breach  of  a  contract 
wath  an  actress.  Howard  v.  Daly,  61  N.  Y.  362.  Where  the 
plaintiff",  o^\^ler  of  a  portable  saw  mill,  agreed  to  remove  it  to 
the  farm  of  the  defendant,  and  to  saw  a  stated  number  of  logs, 
to  be  furnished  by  the  defendant,  during  certain  seasons  of  the 
year  1865,  and  the  defendant,  after  furnishing  a  portion,  broke 
his  contract  by  refusing  to  furnish  more  of  such  logs,  but  during 
the  time  he  (plaintiff)  would  have  been  engaged  in  sawing  de- 
fendant 's  logs  he  was  offered  other  employment  of  the  same  kind, 
so  that  his  mill  need  not  have  been  idle,  it  was  held  that  the 
damages  caused  by  the  breach  sued  upon  should  have  been  miti- 
gated.   Heavilon  v.  Kramer,  31  Ind.  241.     (Citing  authorities.) 

The  contract  which  was  broken  in  the  present  case  was  not 
one  for  personal  services,  nor  one  which  the  parties  contem- 
plated should  be  performed  with  any  special  means  or  instru- 
mentality. It  was  simply  a  contract  for  the  delivery  of  certain 
logs  at  a  certain  place,  and  might  have  been  performed  by  the 
plaintiffs  with  their  own  teams  and  personal  labor,  or  by  any 
other  means  or  agency  to  which  they  might  have  seen  fit  to  in- 
trust the  performance  of  the  same.  There  is  nothing  in  the  con- 
tract to  show  that  the  execution  of  the  same  required  all  or  any 
great  portion  of  the  time  or  personal  attention  of  both  or  either 
of  the  plaintiffs ;  or  that  it  was  impracticable  for  plaintiffs  to  be 
engaged  in  other  business  and  the  performance  of  other  con- 


AVOIDABLE   DAMAGES.  31 

tracts  contemporaneously  with  the  performance  of  the  contract 
in  controversy.  We  do  not  think  the  rule  invoked  as  to  mitiga- 
tion of  damages  by  subsequent  earnings  and  profits  applies  to 
this  case.  A  distinction  is  recognized  between  a  case  of  the 
character  of  that  now  before  us,  and  those  to  which  we  have 
alluded.     (Citing  authorities.) 

There  was  no  legal  obligation  upon  the  plaintiffs  in  this  case 
to  enter  upon  the  performance  of  other  contracts  for  the  benefit 
of  the  defendants.  The  Supreme  Court  of  Wisconsin,  in  Cam- 
eron V.  White,  74  Wis.  425,  where  a  contention  like  that  of 
appellants  in  this  case  was  made,  as  we  think  properly  said:  "As 
the  plaintiffs  could  not  enhance  the  damages  against  the  defend- 
ant by  their  neglect  to  make  the  best  of  what  they  had  on  their 
hands,  so  they  are  not  bound  to  lessen  the  damages  by  making 
other  contracts,  and  performing  them,  and  giving  the  benefit 
of  the  performance  of  such  contracts  to  the  defendant."  A 
very  full  exposition  of  this  subject,  showing  the  difference  in 
the  rules  applicable  to  contracts  for  personal  service  and  those 
for  the  doing  of  a  specific  act,  can  be  found  in  Watson  v.  Brick 
Co.,  3  Wash.  283.  This  discussion  is  too  lengthy  to  insert  entire 
in  this  opinion.  The  gist  of  the  whole  matter,  the  conclusion 
of  the  court,  citing  Wolf  v.  Studebaker,  65  Pa.  459,  is  thus 
stated:  "The  duty  to  seek  employment  is  dependent  upon  the 
original  contract  being  one  of  employment  or  hire.  It  is  not  ap- 
plicable to  every  contract.  *  *  *  Ordinary  contracts  of  hire 
and  contracts  for  the  performance  of  some  specified  imdertaking 
cannot  be  governed  by  the  same  rule.  That  in  one  case  the  party 
can  earn  no  more  than  the  wages,  and  if  he  gets  that  his  loss 
will  be  but  nominal;  whereas,  in  the  other  case,  the  loss  of  the 
party  is  the  loss  of  the  benefit  of  the  contract.  The  damages 
may  be  said  to  be  fixed  by  the  law  of  the  contract  the  moment 
it  is  broken,  and  cannot  be  altered  by  collateral  circumstances 
independent  of  and  totally  disconnected  from  it,  and  from  the 
party  occasioning  it.  To  plead  the  doctrine  of  avoidable  con- 
sequences to  such  case,  *  *  *  'would  necessarily  involve 
proof  of  everything,  great  and  small,  no  matter  how  various  the 
items  done  by  the  plaintiff  during  the  period  of  the  contract 
might  be,  and  how  much  he  made  in  the  meantime.'  *  *  * 
If  the  rule  was  to  be  observed  that  the  damages  proven  must 
be  direct  and  proximate,  the  same  rule  must  be  invoked  in  the 
reduction  of  damages."  In  Crescent  Manuf 'g  Co.  v.  N.  O.  Nelson 


32  CLASSIFICATION  OF  DAMAGES. 

Mauuf  g  Co.,  lUO  ^io.  325,  where  an  attempt  was  made  to  offer 
evidence  similar  to  that  excluded  in  the  present  case,  it  was  said ; 
"Where  a  servant  is  wrongfully  discharged  during  his  term, 
and  lays  his  damages  at  the  contract  wages  for  the  balance  of 
the  term,  it  is  generally  held  that  evidence  may  be  introduced 
in  mitigation  of  damages  of  what  he  might  have  earned  in  the 
interim  by  using  reasonable  efforts  to  procure  other  employment. 
So,  in  general,  where  a  party  has  been  injured  or  damaged  by 
a  breach  of  a  contract,  he  should  do  whatever  he  can  to  lessen 
the  injury.  Many  cases  asserting  these  principles  of  law  are 
cited  by  the  defendant,  but  they  have  no  application  to  the 
case  in  hand.  The  plaintiff  owned  its  factory  and  the  machinery, 
and  the  contract  constituted  no  such  relation  as  that  of  master 
and  servant.  It  had  the  right  to  make  as  few  or  as  many  other 
contracts  as  it  saw  fit  while  executing  the  contract  with  defend- 
ant, and  it  is  entitled  to  the  profits  which  it  might  have  made 
on  this  particular  contract.  The  evidence  offered  in  mitigation 
of  damages  was  properly  excluded. "     *     *     * 

The  second  matter,  as  already  stated,  is  whether  any  interest 
is  recoverable,  upon  the  amount  of  damages  found  by  the  jury 
against  the  defendants.  "There  are  two  tests  which  are  con- 
stantly applied  by  the  courts,  having  been  found  by  them  more 
useful  than  the  attempted  division  into  liquidated  and  unliq- 
uidated demands.  Of  these  the  first  is  whether  the  demand  is 
of  such  a  nature  that  its  exact  pecuniary  amount  was  either  as- 
certained or  ascertainable  by  simple  computation,  or  by  refer- 
ence to  generally  recognized  standards,  siich  as  market  price; 
second,  whether  the  time  from  which  interest,  if  allowed,  must 
run — that  is.  a  time  of  definite  default  or  tort  feasance, — can  be 
ascertained. ' ' 

Without  setting  forth  even  a  brief  summary  of  the  evidence 
in  the  case,  we  think  it  is  sufficient  to  say  that  it  was  so  exact  and 
definite  as  to  the  amount  of  damage  sustained  by  the  plaintiffs, 
and  the  elements  of  the  same,  that  it  only  required  a  simple 
computation  by  the  jury  to  fix  the  amount.  We  think  the  case 
falls  within  the  rule  stated,  that  the  damages  could  be  readily 
liquidated  and  ascertained  by  the  jury  by  simple  computation, 
and  that  the  plaintiffs  were  entitled  to  interest  thereon.  *  *  * 
Let  the  judgment  of  the  Circuit  Court  he  affirmed. 


AVOIDABLE    DAMAGES.  33 

ZIBBELL  V.  CITY  0¥  GRAND  RAPIDS. 

Michigan,   1902.     129   Mich.   661. 

Montgomery,  C.  J.  Plaintiff  recovered  a  judgment  of  $3,500, 
for  injuries  received  by  a  fall  on  a  sidev^^alk  alleged  to  have 
been  defective. 

There  was  testimony  that  plaintiff,  after  receiving  the  injury, 
called  a  surgeon  to  treat  her  limb,  and  that  he  advised  rest  for 
the  knee.  There  was  also  testimony  that  she  did  use  her  limb  to 
some  extent.  The  circuit  judge  charged:  "The  plaintiff  is  not 
entitled  to  recover  any  damages  for  any  disability,  suffering, 
or  expense  that  resulted  from  her  own  failure  to  exercise  proper 
and  reasonable  care  after  she  received  the  injury  of  which  she 
complains,  which  aggravated  her  condition,  by  failure  to  observe 
the  instructions  of  her  physician ;  and  the  city  is  not  to  be  held 
responsible  for  any  damages  resulting  from  such  neglect  on  her 
part."  This  instruction  correctly  embodied  the  law.  Moore  v. 
City  of  Kalamazoo,  109  Mich.  179 ;  Reed  v.  City  of  Detroit,  108 
Mich.  224.  But  the  difficulty  arises  out  of  the  fact  that,  when 
counsel  attempted  to  argue  this  question  to  the  jury,  he  was 
stopped  with  the  statement  that  the  court  would  charge  that  there 
was  no  act  of  the  plaintiff  which  aggravated  her  condition.  This 
was  error.  The  testimony  was  for  the  jury,  and,  while  it  may  not 
have  been  very  convincing  that  she  had  been  guilty  of  any  impru- 
dence, it  should  not  have  been  wholly  withdrawn  from  the  con- 
sideration of  the  jury. 

The  other  questions  do  not  require  discussion. 

Judgment  reversed,  and  new  trial  ordered. 

Long,  J.,  did  not  sit.   The  other  justices  concurred. 

It  is  the  duty  of  plaintiff  to  minimize  his  losses  and  use  due  diligence 
to  that  end  as  well  in  case  of  hreach  of  contract  as  in  tort.  Woodward, 
J.,  in  Brown  v.  Weir,  95  App.  Div.  N.  Y.  78. 


34  CLASSIFICATION  OF  DAMAGES. 

3.     Compensatory  Damages. 
ALLISON  V.  CHANDLER. 

Michigan,  1S63.     H  Midi.  543. 

Christiancy,  J  *  *  *  Tlie  only  question  presented  by 
the  present  bill  of  exceptions,  and  not  already  disposed  of  by 
our  former  decision,  is  the  question  of  damages.  *  *  * 
Since,  from  the  nature  of  the  case,  the  damages  cannot  be  esti- 
mated with  certainty,  and  there  is  a  risk  of  giving  by  one  course 
of  trial  less,  and  by  the  other  more  than  a  fair  compensation — 
to  say  nothing  of  justice — does  not  sound  policy  require  that  the 
risk  should  be  thrown  upon  the  wrong  doer  instead  of  the  in- 
jured party?  However  this  question  may  be  answered,  we  can- 
not resist  the  conclusion  that  it  is  better  to  run  a  slight  risk 
of  giving  somewhat  more  than  actual  compensation,  than  to 
adopt  a  rule  which,  luider  the  circumstances  of  the  case,  will, 
in  all  reasonable  probability,  preclude  the  injured  party  from 
the  recovery  of  a  large  proportion  of  the  damages  he  has  actually 
sustained  from  the  injury,  though  the  amount  thus  excluded 
cannot  be  estimated  with  accuracy  by  a  fixed  and  certain  rule. 
Certainty  is  doubtless  very  desirable  in  estimating  damages  in 
all  cases:  and  where,  from  the  nature  and  circumstances  of 
the  case,  a  rule  can  be  discovered  by  which  adequate  com- 
pensation can  be  accurately  measured,  the  rule  should  be  ap- 
plied in  actions  of  tort,  as  well  as  in  those  upon  contract. 
Such  is  quite  generally  the  case  in  trespass  and  trover  for 
the  taking  or  conversion  of  personal  property ;  if  the  prop- 
erty (as  it  generally  is)  be  such  as  can  be  readily  obtained  in 
the  market  and  has  a  market  value.  But  shall  the  injured 
party  in  an  action  of  tort,  which  may  happen  to  furnish  no 
element  of  certainty,  be  allowed  to  recover  no  damages  (or 
merely  nominal)  because  he  cannot  show  the  exact  amount 
with  certainty,  though  he  is  ready  to  show,  to  the  satisfaction 
of  the  jur>%  that  he  has  suffered  large  damages  by  the  injury? 
Certainty,  it  is  true,  would  thus  be  attained ;  but  it  would  be 
the  certainty  of  injustice.  And,  though  a  rule  of  certainty  may 
be  found  which  will  measure  a  portion  and  only  a  portion  of 
the  damages,  and  exclude  a  very  material  portion,  which  it 
can  be  rendered  morally  certain  the  injured  party  has  sus- 
tained, though  its  exact  amount  cannot  be  measured  by  a  fixed 


COMPENSATORY  DAMAGES.  35 

rule;  here  to  apply  any  such  rule  to  the  whole  case,  is  to  mis- 
apply it :  and  so  far  as  it  excludes  all  damages  which  cannot  be 
measured  by  it,  it  perpetrates  positive  injustice  under  the  pre- 
tence uf  administering  justice. 

The  law  does  not  require  impossibilities;  and  cannot  there- 
fore require  a  higher  degree  of  certainty  than  the  nature  of 
the  case  admits.  And  we  can  see  no  good  reason  for  requir- 
ing any  higher  degree  of  certainty  in  respect  to  the  amount 
of  damages,  than  in  respect  to  any  other  branch  of  the  cause. 
Juries  are  allowed  to  act  upon  probable  and  inferential,  as 
well  as  direct  and  positive  proof.  And  when,  from  the  nature 
of  the  case,  the  amount  of  the  damages  cannot  be  estimated 
with  certainty,  or  only  a  part  of  them  can  be  so  estimated,  we 
can  see  no  objection  to  placing  before  the  jury  all  the  facts 
and  circumstances  of  the  case,  having  any  tendency  to  show 
damages,  or  their  probable  amount;  so  as  to  enable  them  to 
make  the  most  intelligible  and  probable  estimate  which  the  nature 
of  the  case  will  permit.  This  should,  of  course,  be  done  with 
such  instructions  and  advice  from  the  court  as  the  circum- 
stances of  the  case  may  require,  and  as  may  tend  to  prevent 
the  allowance  of  such  as  may  be  merely  possible,  or  too  remote 
or  fanciful  in  their  character  to  be  safely  considered  as  the 
result  of  the  injury. 

In  the  adoption  of  this  course  it  will  seldom  happen  that 
the  court,  hearing  the  evidence,  will  not  thereby  possess  the 
means  of  forming  a  satisfactory  judgment  whether  the  dam- 
ages are  unreasonable,  or  exorbitant;  and,  if  satisfied  they  are 
so,  the  court  have  always  the  power  to  set  aside  the  verdict  and 
grant  a  new  trial. 

The  justice  of  the  principles  we  have  endeavored  to  explain 
will,  we  think,  be  sufficiently  manifest  in  their  application  to 
the  present  case.  The  evidence  strongly  tended  to  show  an 
ouster  of  the  plaintiff  for  the  balance  of  the  term,  by  the  de- 
fendant's act.  This  term  was  the  property  of  the  plaintiff; 
and,  as  proprietor,  he  was  entitled  to  all  the  benefits  he  could 
derive  from  it.  He  could  not  by  law  be, compelled  to  sell  it 
for  such  sum  as  it  might  be  worth  to  others ;  and,  when  tortiously 
taken  from  him  against  his  wall,  he  cannot  justly  be  limited 
to  such  sum — or  the  difference  between  the  rent  he  was  paying 
and  the  fair  rental  value  of  the  premises— if  the  premises  were 
of  much  greater  and  peculiar  value  to  him,  on  account  of  the 


36  CLASSIFICATION  OF  DAMAGES. 

business  he  had  established  in  the  store,  and  the  resort  of 
custoinere  to  that  particuhir  place,  or  the  good  will  of  the  place, 
in  his  trade  or  business.  His  right  to  the  full  enjoyment  of 
the  use  of  the  premises,  in  any  manner  not  forbidden  by  the 
lease,  was  as  clear  as  that  to  sell  or  dispose  of  it,  and  was  as 
much  his  property  as  the  term  itself,  and  entitled  to  the  same 
protection  from  the  laws.  He  had  used  th(;  premises  as  a 
jewelry  store,  and  place  of  business  for  the  repairing  of  watches, 
making  gold  pens,  etc.  This  business  must  be  broken  up  by 
the  ouster,  unless  the  plaintiff  could  obtain  another  fit  place 
for  it;  and  if  the  only  place  he  could  obtain  was  less  fitted 
and  less  valuable  to  him  for  that  purpose,  then  such  business 
would,  be  injured  to  the  extent  of  this  difference ;  and  this 
would  be  the  natural,  direct  and  immediate  consequence  of 
the  injury.  To  confine  the  plaintiff  to  the  difference  between 
the  rent  paid  and  the  fair  rental  value  of  the  premises  to 
others,  for  the  balance  of  the  term,  would  be  but  a  mockerj^ 
of  justice.  To  test  this,  suppose  the  plaintiff  is  actually  pay- 
ing that  full  rental  value,  and  has  established  a  business  upon 
the  premises,  the  clear  gains  or  profits  of  which  have  been  an 
average  of  one  thousand  dollars  per  year;  and  he  is  ousted 
from  the  premises  and  this  business  entirely  broken  up  for  the 
balance  of  the  time;  can  he  be  allowed  to  recover  nothing  but 
six  cents  damages  for  his  loss?  To  ask  such  a  question  is  to 
answer  it.  The  rule  which  would  confine  the  plaintiff  to  the 
difference  between  such  rental  value  and  the  stipulated  rent 
can  rest  only  upon  the  assumption  that  the  plaintiff  might  (as 
in  case  of  personal  property)  go  at  once  into  the  market  and 
obtain  another  building  equally  well  fitted  for  his  business,  and 
that  for  the  same  rent ;  and  to  justify  such  a  rule  of  damages 
this  assumption  must  be  taken  as  a  conclusive  presumption  of 
law.  However  such  a  presumption  might  be  likely  to  accord 
with  the  fact  in  the  city  of  New  York,  in  most  western  cities 
and  towns  it  would  be  so  obviously  contrary  to  the  common 
experience  of  the  facts,  as  to  make  the  injustice  of  the  rule  gross 
and  palpable.  But  we  need  not  further  discuss  this  point,  as 
a  denial  of  any  such  presumption  was  clearly  involved  in  our 
former  decision. 

The  plaintiff  in  this  case  did  hire  another  store,  "the  best 
he  could  obtain,  but  not  nearly  so  good  for  his  business" — 
"his  customers  did  not  come  to  the  new  store,  and  there  was 


COMPFJJSATORY   DAMAGES.  '67 

not  SO  much  of  a  thoroughfare  by  it,  not  one  quarter  of  the 
travel,  and  he  relied  much  upon  chance  custom,  especially  in 
the  watch-repairing  and  other  mechanical  business."  This  in- 
jury to  the  plaintiff's  business  was  as  clearly  a  part  of  his 
damages  as  the  loss  of  the  term  itself.  This  point  also  was 
decided  in  the  former  case,  and  we  there  further  held  that  the 
declaration  was  sufficient  to  admit  the  proof  of  this  species  of 
loss. 

Now  if  the  plaintiff  is  to  be  allowed  to  recover  for  this  in- 
jury to  his  business,  it  would  seem  to  follow,  as  a  necessary 
consequence,  that  the  value  of  that  business  before  the  injmy 
as  well  as  after,  not  only  might  but  should  be  shown,  as  an 
indispensable  means  of  showing  the  amount  of  loss  from  the 
injury.  If  the  business  were  a  losing  one  to  the  plaintiff  be- 
fore, his  loss  from  its  being  broken  up  or  diminished  (if  any- 
thing) would  certainly  be  less  than  if  it  were  a  profitable  one. 
It  is  not  the  amount  of  business  done,  but  the  gain  or  profit 
arising  from  it,  which  constitutes  its  value.     *     *     * 

The  other  Justices  concurred. 


PARKER  V.  RUSSELL. 

Massachusetts,  1882.     133  Mass.  74. 

Field,  J.  In  an  action  for  the  breach  of  a  contract  to  sup- 
port the  plaintiff  during  his  life,  if  the  contract  is  regarded  as 
still  subsisting,  the  damages  are  assessed  up  to  the  date  of  the 
writ,  and  not  up  to  the  time  when  the  verdict  is  rendered.  Fay 
V.  Guynon,  131  Mass.  31. 

But  if  the  breach  has  been  such  that  the  plaintiff  has  the 
right  to  treat  the  contract  as  absolutely  and  finally  broken  by 
the  defendant,  and  he  elects  so  to  treat  it,  the  damages  are 
assessed  as  of  a  total  breach  of  an  entire  contract.  Amos  v. 
Oakley,  131  Mass.  413 ;  Schell  v.  Plumb,  55  N.  Y.  592 ;  Remelee 
V.  Hall,  31  Yt.  582 ;  Fales  v.  Hemenway,  64  Maine,  373 ;  Suth- 
erland V.  Y\ver.  67  Uame,  64 ;  Lamoreaux  v.  Rolf e,  36  N.  H.  33 ; 
Mullaly  V.  Austin,  97  IMass.  30 ;  Howard  v.  Daly,  61  N.  Y.  362. 

Such  damages  are  not  special  or  prospective  damages,  but 
are  the  damages  naturally  resulting  from  a  total  breach  of 
the  contract,  and  are  suffered  when  the  contract  is  broken, 
and  are  assessed  as  of  that  time.  From  the  nature  of  the  con- 
tract they  include  damages  for  not  performing  the   contract 


38  CLASSIFICATION  OP  DAMAGES. 

in.  the  future  as  well  as  in  the  past.  The  value  of  the  contract 
to  the  plaintiff  at  the  time  it  is  broken  may  be  somewhat  in- 
definite because  the  duration  of  the  life  of  the  plaintiff  is  uncer- 
tain, but  uncertainty  in  the  duration  of  a  life  has  not,  since 
the  adoption  of  life  tables,  been  regarded  as  a  reason  why  full 
relief  in  damages  should  not  be  afforded  for  a  failure  to  per- 
form a  contract  which  by  its*  terms  was  to  continue  during  life. 

When  the  defendant,  for  example,  absolutely  refuses  to  per- 
form such  a  contract  after  the  time  for  entering  upon  the  per- 
formance has  begun,  it  Avould  be  a  great  hardship  to  compel 
the  plaintiff  to  be  ready  at  all  times  during  his  life  to  be  sup- 
ported by  the  defendant,  if  the  defendant  should  at  any  time 
change  his  mind:  and  to  hold  that  he  must  resort  to  successive 
actions  from  time  to  time  to  obtain  his  damages  piecemeal,  or 
else  leave  them  to  be  recovered  as  an  entirety  by  his  personal 
representatives  after  his  death. 

Daniels  v.  Newton,  114  Mass.  530,  decides  that  an  absolute 
refusal  to  perform  a  contract  before  the  performance  is  due 
by  the  terms  of  the  contract  is  not  a  present  breach  of  the 
contract  for  which  any  action  can  be  maintained;  but  it  does 
not  decide  that  an  absolute  refusal  to  perform  a  contract  after 
the  time  and  imder  the  conditions  in  which  the  plaintiff  is 
entitled  to  require  performance,  is  not  a  breach  of  the  contract, 
even  although  the  contract  is  by  its  terms  to  continue  in  the 
future. 

The  cases  cited  by  the  defendant  are  not  inconsistent  with 
these  views.  In  Pierce  v.  Woodward,  6  Pick.  206,  the  declara- 
tion was  for  a  breach  of  a  negative  promise,  namely,  "not  to 
set  up  the  business  of  a  grocer"  within  certain  limits;  and  it 
was  held  that  the  damages  could  be  assessed  only  to  the  date 
of  the  writ.  The  defendant  might  at  any  time,  without  the 
consent  of  the  plaintiff,  stop  carrying  on  the  business,  when 
the  plaintiff's  damages  would  necessarily  cease. 

Powers  V.  Ware,  4  Pick.  106,  was  an  action  of  covenant 
broken,  brought  by  the  overseers  of  the  poor,  under  the  St. 
of  1793,  c.  59,  §  5,  for  the  breach  of  a  covenant  to  maintain 
an  apprentice  under  an  indenture  of  apprenticeship.  The  court 
in  the  opinion  speak  of  the  common-law  rule  in  assessing  dam- 
ages only  to  the  date  of  the  writ.  But  the  statute  under  which 
the  action  was  brought  prevented  the  overseers  from  treating 
the  contract  as  wholly  at  an  end,  because  it  gave  the  apprentice 


COMPENSATORY    DAMAGES.  39 

a  right  of  action  when  the  term  is  expired,  "for  damages  for 
the  causes  aforesaid,  other  than  such,  if  any,  for  which  damages 
may  have  been  recovered  as  aforesaid,"  that  is,  by  the  overseers. 

Hambleton  v.  Veere,  2  Saund.  169,  was  an  action  on  the  case 
for  enticing  away  an  apprentice;  and  Ward  v.  Rich,  1  Vent. 
103,  was  an  action  for  abducting  a  wife;  and  neither  throws 
much  light  on  the  rule  of  damages  for  breach  of  a  contract. 

Horn  v.  Chandler,  1  Mod.  271,  was  covenant  broken  upon 
an  indenture  of  an  infant  apprentice,  who  under  the  custom 
of  London  had  bound  himself  to  serve  the  plaintiff  for  seven 
years;  the  declaration  alleged  a  loss  of  service  for  the  whole 
term,  a  part  of  which  was  unexpired;  on  demurrer  to  the 
plea,  the  declaration  was  held  good,  but  it  was  said  "that  the 
plaintiff  may  take  damages  for  the  departure  only,  not  the  loss 
of  service  duing  the  term ;  and  then  it  will  be  well  enough. ' ' 
But  if  this  be  law  to-day  in  actions  on  indentures  of  apprentice- 
ship, it  must  be  remembered  that  they  are  peculiar  contracts, 
in  which  the  rights  and  obligations  of  the  parties  are  often 
affected  by  statutory  regulations,  and  in  some  cases  they  can- 
not be  avoided  or  treated  as  at  an  end  at  the  will  of  the  parties. 

In  this  case,  the  declaration  alleges  in  effect  a  promise  to 
support  the  plaintiff  during  his  life,  from  and  after  receiving 
the  conveyance  of  certain  real  estate,  an  acceptance  of  such 
conveyance,  and  a  neglect  and  refusal  to  perform  the  agree- 
ment. These  are  sufficient  allegations  to  enable  the  plaintiff 
to  recover  damages  as  for  a  total  breach.  The  court  instructed 
the  jury  that,  "if  the  defendant  for  a  period  of  about  two 
years  neglected  to  furnish  aid  or  support  to  the  plaintiff,  with- 
out any  fault  of  the  plaintiff,  the  plaintiff  might  treat  the  con- 
tract as  at  an  end,  and  recover  damages  for  the  breach  of  the  con- 
tact as  a  whole."  We  cannot  say  that  this  instruction  was 
erroneous  as  applied  to  the  facts  in  evidence  in  the  cause,  which 
are  not  set  out. 

The  jury  must  have  found  that  the  plaintiff  did  treat  the 
contract  as  finally  broken  by  the  defendant,  and  the  propriety 
of  this  finding  on  the  evidence  is  not  before  us. 

Judgment  on  the  verdict  for  the  larger  sum. 


40  CL^VSSIFICATION  OF  DAMAGES, 

BALTIMORE    AND    POTOMAC    RAILROAD    v.    FIFTH  . 
BAPTIST  CHURCH. 

United  States  Supreme  Court,  1883.     108  U.  S.  317. 

Action  in  the  nature  of  an  action  on  the  ease  to  recover 
damages  for  the  discomfort  occasioned  by  the  establishment  of 
a  building  for  housing  the  locomotive  engines  of  a  railroad  com- 
pany contiguous  to  a  building  used  for  Sunday-schools  and 
public  worship  by  a  religious  society. 

The  court  gave  a  charge  to  the  jury  in  part,  as  follows: 

"We  can  imagine,  and  it  is  not  a  far-fetched  imagination 
either,  that  the  effect  of  such  a  workshop  in  that  neighborhood 
might  be  to  collect  a  population  around  it,  and  thus  enhance 
the  population  in  that  neighborhood,  and  really  enhance  the 
value  of  property;  and  yet  the  congregation  would  be  entitled 
to  recover  damages  (although  their  property  might  have  been 
increased  in  value)  because  of  the  inconvenience  and  discom- 
fort they  have  suffered  from  the  use  of  the  shop.  The  congre- 
gation has  the  same  right  to  the  comfortable  enjoyment  of  its 
house  for  church  purposes  that  a  private  gentleman  has  to  the 
comfortable  enjoyment  of  his  own  house,  and  it  is  the  discom- 
fort which  is  the  primary  consideration  in  allowing  damages." 

Field,  J.  *  *  *  The  instruction  of  the  court  as  to  the 
estimate  of  damages  w^as  correct.  ]\lere  depreciation  of  the 
property  was  not  the  only  element  for  consideration.  That 
might,  indeed,  be  entirely  disregarded.  The  plaintiff  was  en- 
titled to  recover  because  of  the  inconvenience  and  discomfort 
caused  to  the  congregation  assembled,  thus  necessarily  tending 
to  destroy  the  use  of  the  building  for  the  purposes  for  which 
it  was  erected  and  dedicated.  The  property  might  not  be  de- 
preciated in  its  salable  or  market  value,  if  the  building  had 
been  entirely  closed  for  those  purposes  by  the  noise,  smoke,  and 
odors  of  the  defendant's  shops.  It  might  then,  perhaps,  have 
brought  in  the  market  as  great  a  price  to  be  used  for  some  other 
purpose.  But,  as  the  court  below  very  properly  said  to  the 
jury,  the  congregation  had  the  same  right  to  the  comfortable 
enjoyment  of  its  house  for  church  purposes  that  a  private  gen- 
tleman has  to  the  comfortable  enjoyment  of  his  own  house,  and 
it  is  the  discomfort  and  annoyance  in  its  use  for  those  purposes 
which  is  the  primary  consideration  in  allowing  damages.  As 
with  a  blow  on  the  face,  there  may  be  no  arithmetical  rule  for 


COMPENSATORY   DAMAGES.  41 

the  estimate  of  damages.     There  is,  however,  an  injury,  the  ex- 
tent of  which  the  jury  may  measure. 

Judgment  affirmed. 


DARLEY   MAIN   COLLIERY    CO.    v.   MITCHELL. 

House  of  Lords,  1886.     11  App.  Cas.  127. 

Appeal  from  a  decision  of  the  Court  of  Appeal. 

Lord  Halsbury,  L.C.  My  Lords,  in  this  case  the  plaintiff, 
the  owner  of  land  upon  the  surface,  has  sued  the  lessee  of  cer- 
tain seams  of  coal  below  and  adjacent  to  the  plaintiif's  land 
for  having  disturbed  the  plaintiff  in  the  enjoyment  of  his  prop- 
erty by  causing  it  to  subside.  The  defendants  before  and  up 
to  the  year  1868  have  worked,  that  is  to  say,  excavated,  the 
seams  of  coal,  of  which  they  were  lessees.  Their  excavation 
caused  a  subsidence  of  the  ground,  for  which  they  acknowledged 
their  liability  and  made  satisfaction.  There  were  other  sub- 
sidences after  this,  and  as  the  case  originally  came  before  your 
Lordships,  it  was  a  matter  of  inference  only  whether  these  sub- 
sidences were  or  were  not  in  some  way  connected  with,  if  not 
forming  part  of,  the  original  subsidence.  The  parties  have 
now,  by  an  admission  at  your  Lordships'  bar,  placed  the  matter 
beyond  doubt. 

It  has  been  agreed  that  the  owner  of  the  adjoining  land 
worked  out  his  coal  subsequently  to  1868.  That  if  he  had  not 
done  so  there  would  have  been  no  further  subsidence,  and  if 
the  defendants'  coal  had  not  been  taken  out,  or  if  sufficient  sup- 
port had  been  left,  the  working  of  the  adjoining  owner  would 
have  done  no  harm.  Under  these  circumstances,  the  question 
is  whether  the  satisfaction  for  the  past  subsidence  must  be  taken 
to  have  been  equivalent  to  a  satisfaction  for  all  succeeding  sub- 
sidences. No  one  will  think  of  disputing  the  proposition  that 
for  one  cause  of  action  you  must  recover  all  damages  incident 
to  it  by  law  once  and  forever.  A  house  that  has  received  a 
shock  may  not  at  once  show  all  the  damage  done  to  it,  but  it  is 
damaged  none  the  less  then  to  the  extent  that  it  is  damaged, 
and  the  fact  that  the  damage  only  manifests  itself  later  on  by 
stages  does  not  alter  the  fact  that  the  damage  is  there;  and 
so  of  the  more  complex  mechanism  of  the  human  frame,  the  dam- 
age is  done  in  a  railway  accident,  the  whole  machinery  is  in- 
jured, though  it  may  escape  the  eye  or  even  the  consciousness 


42  CLASSIFICATION  OF  DAMAGES. 

of  the  sufferer  at  the  time ;  the  later  stages  of  suffering  are  but 
the  manifestations  of  the  original  damage  done,  and  consequent 
upon  the  injury  originally  sustained. 

But  the  words  "cause  of  action"  are  somewhat  ambiguously 
used  in  reasoning  upon  this  subject;  what  the  plaintiff'  has  a 
right  to  complain  of  in  a  Court  of  Law  in  this  case  is  the  dam- 
age to  his  land,  and  by  the  damage  I  mean  the  damage  which 
had  in  fact  occurred,  and  if  this  is  all  that  a  plaintiff"  can  com- 
plain of,  I  do  not  see  why  he  may  not  recover  toties  quoties 
fresh  damage  is  inflicted. 

Since  the  decision  of  this  House  in  Bonomi  v.  Backhouse, 
9  II.  L.  C.  503,  it  is  clear  that  no  action  would  lie  for  the  ex- 
cavation. It  is  not,  therefore,  a  cause  of  action ;  that  case  estab- 
lished that  it  is  the  damage  and  not  the  excavation  which  is  the 
cause  of  action.  I  cannot  understand  why.every  new  subsidence, 
although  proceeding  from  the  same  original  act  or  omission  of 
the  defendants,  is  not  a  new  cause  of  action  for  which  damages 
may  be  recovered.  I  cannot  concur  in  the  view  that  there  is 
a  breach  of  duty  in  the  original  excavation. 

In  Rowbotham  v.  Wilson,  8  E.  &  B.  123,  157,  Cresswell,  J., 
said  that  the  owner  of  the  mines  might  have  removed  every 
atom  of  the  minerals  without  being  liable  to  an  action,  if  the 
soil  above  had  not  fallen;  and  what  is  true  of  the  first  sub- 
sidence seems  to  me  to  be  necessarily  true  of  every  subsequent 
subsidence.  The  defendant  has  originally  created  a  state  of 
things  which  renders  him  responsible  if  damage  accrues;  if 
by  the  hypothesis  the  cause  of  action  is  the  damage  resulting 
from  the  defendant's  act,  or  an  omission  to  alter  the  state  of 
things  he  has  created,  why  may  not  a  fresh  action  be  brought? 
A  man  keeps  a  ferocious  dog  which  bites  his  neighbor;  can  it 
be  contended  that  when  the  bitten  man  brings  his  action  he 
must  assess  damages  for  all  possibility  of  future  bites?  A  man 
stores  water  artificially,  as  in  Fletcher  v.  Rylands,  Law  Rep. 
3  H.  L.  330;  the  water  escapes  and  sweeps  away  the  plaintiff's 
house;  he  rebuilds  it,  and  the  artificial  reservoir  continues  to 
leak  and  sweeps  it  away  again.  Cannot  the  plaintiff  recover 
for  the  second  house,  or  must  he  have  assessed  in  his  first  dama- 
ges the  possibility  of  any  future  invasion  of  water  flowing  from 
the  same  reservoir? 

"With  respect  to  the  authorities,  the  case  of  Nicklin  v.  AVilliams, 
10,  Ex.  259,  was  urged  by  the  Attorney-General  as  an  authority 


COMPENSATORY   DAMAGES.  43 

upon  the  question  now  before  your  Lordships,  by  reason  of 
some  words  attributed  to  Lord  Westbury  in  Bonomi  v.  Back- 
house. If  Lord  Westbury  really  did  use  the  words  attributed  to 
him,  it  is,  I  think,  open  to  doubt  in  what  sense  they  are  to  be 
understood.  Baron  Parke  in  that  ease  delivered  the  judgment 
against  the  plaintiffs  recovering  any  subsequently  accruing 
damage,  because,  he  said,  the  cause  of  action  was  the  original 
injury  to  the  right  by  withdrawing  support.  That  principle 
is  admittedly  wrong,  and  was  expressly  held  to  be  wrong  in 
Bonomi  v.  Backhouse,  since  if  that  had  been  law  there  could 
have  been  no  answer  to  the  plea  of  the  Statute  of  Limitations  in 
that  ease.  It  is  difficult  to  follow  the  Master  of  the  Rolls  when 
he  says  it  was  not  necessary  to  overrule  Nicklin  v.  Williams  by 
that  decision.  It  seems  to  me  to  have  been  the  whole  point  de- 
cided in  Nicklin  v.  W^illiams,  and  how  that  case  so  decided  can 
be  an  authority  for  anything  I  am  at  a  loss  to  understand. 

I  think  the  decision  of  this  case  must  depend  as  matter  of 
logic  upon  the  decision  of  your  Lordships'  House  in  Bonomi  v. 
Backhouse,  and  I  do  not  know  that  it  is  a  very  legitimate  in- 
quiry, when  a  principle  has  been  laid  down  by  a  tribunal  from 
which  there  is  no  appeal,  and  which  is  bound  by  its  o^vn  de- 
cisions, whether  that  principle  is  upon  the  whole  advantageous 
or  convenient;  but  if  such  considerations  were  permissible,  I 
think  Cockbum,  C.J.,  in  his  judgment  in  Lamb  v.  Walker,  3 
Q.  B.  D.  389,  establishes  the  balance  of  convenience  to  be  on 
the  side  of  the  law,  as  established  by  Bonomi  v.  Backhouse.  I 
cannot  logically  distinguish  between  a  first  and  a  second,  or  a 
third,  or  more  subsidences,  and  after  Bonomi  v.  Backhouse  it 
is  impossible  to  say  that  it  was  wrong  in  any  sense  for  the  de- 
fendant to  remove  the  coal.  Cresswell,  J.,  has  said,  and  I  think 
rightly,  that  he  might  remove  every  atom  of  the  mineral. 

The  wTong  consists,  and,  as  it  appears  to  me  wholly  consists, 
in  causing  another  man  damage,  and  I  think  he  may  recover 
for  that  damage  as  and  when  it  occurs. 

For  these  reasons,  I  think  that  the  judgment  appealed  from 
should  be  affirmed  with  costs. 

Lord  Blackburn  writes  a  dissenting  opinion. 

Order  appealed  from  affirmed;  and  appeal  dismissed  with 
costs. 


44  CLuVSSIPICATION  OF  DAMAGES. 

LEWIS  V.  HARTFORD  DREDGING  CO. 

Connecticut,   189(5.     OS  Conn.  221. 

B.vLDwiN,  J.  The  contract  in  suit  was  one  for  services  to  be 
rendered  in  dredging  material  from  the  bed  of  the  Housatonic 
river  at  a  designated  point,  and  spreading  it  over  the  plaintiff's 
oyster  grounds  at  Westport,  by  a  certain  day  in  August,  Avhen 
the  spawning  season  for  oysters  was  expected  to  open.  These 
grounds  were  of  such  a  character  that,  for  raising  seed  oysters 
upon  them,  it  was  necessary  to  spread  some  hard  material  over 
them,  in  order  to  intercept  the  floating  spawn.  This,  in  the 
phrase  of  the  trade,  is  "planting"  them,  to  "catch  a  set."  The 
material  which  could  be  dredged  up  at  the  point  agreed  on  was 
largely  shells,  and  better  adapted  to  use  on  these  grounds  than 
anything  else.  To  do  work  of  this  description,  a  certain  kind 
/)f  dredging  outfit  is  required,  capable  of  dumping  shells  with 
facility.  The  defendant  had  such  an  outfit,  but,  instead  of  em- 
ploying it  in  the  execution  of  the  contract,  employed  one  Tebo 
to  undertake  it,  with  an  inferior  and  unsuitable  plant.  Tebo, 
finding  that  his  outfit  was  ill  adapted  to  dumping  shells,  aban- 
doned the  work  after  a  few  days,  and  the  superintendent  of  the 
defendant  then  informed  the  plaintiff  that  it  was  doubtful  if 
any  other  dredging  outfit  could  be  obtained  to  perform  the  work, 
and  that  he  "must  protect  himself  by  obtaining  other  material 
that  might  be  available."  Thereupon  he  bought  crushed  stone 
in  New  York,  and  had  it  spread  upon  part  of  his  grounds,  at 
an  expense  considerably  greater  than  that  to  which  he  would 
have  been  subject  had  they  been  planted  as  the  contract  re- 
quired. Such  stone  was  the  best  material  then  available  for 
planting  purposes,  and  the  only  material  in  the  market,  so  far 
as  the  plaintiff  knew,  which  was  adapted  for  use  upon  his 
grounds. 

The  superior  court,  in  assessing  the  plaintiff's  damages,  prop- 
erly allowed  him  this  difference  in  cost.  The  breach  of  a  contract 
to  render  services  ordinarily  entails  a  liability  for  nothing  more 
than  the  difference  between  what  it  would  cost  to  get  the  same 
services  performed  by  another  and  the  contract  price.  But  in 
the  case  at  bar  no  other  could  be  fomid  who  was  able  to  do  the 
work.  It  could  not  be  undertaken  without  a  peculiar  kind  of 
outfit,  which  few  possessed.  The  plaintiff  only  bought  the 
crushed  stone  after  the  defendant  had  informed  him  that  it  was 


COMPENSATORY    DAMAGES.  io 

doubtful  if  such  an  outfit  could  be  anywhere  procured,  and  that 
he  must  protect  himself  by  procuring  other  material  than  that 
which  the  contract  contemplated.  While  it  was  much  more 
costly  than  the  river  material  would  have  been,  it  was  the  only 
thing  to  be  had  which  would  answer  the  purpose,  and  this  pur- 
pose was  one  of  which  the  defendant  had  reasonable  notice  be- 
fore the  contract  was  executed.  The  point  at  which  the  material 
:was  to  be  dredged  was  so  far  determined  that  the  defendant 
could  easily  have  ascertained  the  character  of  the  river  bed, 
and  the  place  of  delivery  was  also  fully  described.  The  defend- 
ant had  dredged  for  oyster  growers  before,  and  had  done  this 
for  the  plaintiff,  among  others,  to  enable  him  to  plant  his  oyster 
grounds  for  catching  a  set.  Soundings  would  readily  have  dis- 
closed the  character  of  the  bottom  on  which  the  material  ob- 
tained from  the  river  was  to  be  spread.  The  defendant  had 
no  right  to  assume  that  any  kind  of  material  which  might  be 
dredged  up  anywhere  would  be  adapted  for  use  upon  these 
grounds,  and  the  plaintiff  was  justified  in  refusing  to  accept 
its  tender  of  the  muddy  deposit  obtained  from  the  Bridgeport 
bar.  He  was  justified,  also,  in  taking  the  defendant  at  its  word, 
and  protecting  himself  against  the  consequence  of  its  default 
by  procuring  suitable  material  for  his  purposes  elsewhere.  That 
he  acted  reasonably  in  the  purchases  he  made  is  conclusively  es- 
tablished by  the  findings  of  the  trial  court;  and  the  numerous 
exceptions  taken  by  the  defendant  to  its  conclusions  of  fact  from 
the  evidence  in  this  respect  are  not  the  subject  of  an  appeal. 
Enfield  v.  Town  of  Ellington,  67  Conn.  459. 

To  show  that  the  material  dredged  from  the  Bridgeport  bar 
was  unsuitable  for  use  on  a  sticky  bottom,  and  that  crushed 
stone  was  suitable,  and  well  adapted  for  catching  a  set,  expert 
testimony  was  properly  received.  Only  from  those  skilled  in 
oyster  culture  could  information  on  these  points  be  expected. 

The  letter  from  the  plaintiff  of  July  19th,  while  evidently 
written  in  an  argumentative  strain,  was  admissible  to  show  that 
he  gave  the  defendant  prompt  notice  of  his  intention  to  set  up 
the  claims  which  are  the  basis  of  this  suit,  and  to  protect  him- 
self at  its  expense  by  the  purchase  of  crushed  stone. 

But  in  the  adn'ission  of  evidence  as  to  the  difference  in  market 
value  on  August  12th  between  an  acre  of  the  plaintiff's  oyster 
grounds,  unplanted,  and  an  acre  planted  in  the  manner  provided 
by  the  contract,  as  well  as  in  the  award  of  damages  including 


•16  CLASSIFICATION  OF  DAMAGES. 

sueli  an  estimated  difference  in  value,  there  was  error.  By  its 
failure  to  provide  the  proper  material  for  planting  part  of  these 
grounds,  the  defendant  became  liable  to  pay  the  plaintiff  such 
damages  as  might  have  been  reasonably  contemplated,  at  the 
date  of  the  contract,  as  the  probable  and  direct  result  of  its 
breach.  The  defendant  knew  that  the  material  which  it  was  to 
dredge  and  spread  was  wanted  to  form  a  bed  for  oyster  culture, 
and  to  form  it  by  the  opening  of  the  spawning  season.  These 
special  circumstances  were  in  the  minds  of  both  parties;  but, 
if  they  could  in  any  case  avail  to  create  a  right  to  special  dam- 
ages, of  the  nature  claimed,  for  a  failure  to  prepare  the  grounds 
for  oyster  cultivation, — the  sole  use  to  which  they  could  be  put, 
— it-  would  be  only  on  proof,  either  that  such  grounds,  when 
planted  with  suitable  material,  were  permanently  improved,  or 
that  such  material  generally  catches  a  set,  and  that  a  set  gen- 
'erally  results  in  a  valuable  crop  of  seed  oysters.  On  the  con- 
trary, however,  it  appeared  that  the  results  of  planting  were 
uncertain  and  conjectural  in  character,  and  the  trial  court  states 
that  the  item  of  $2,280.13,  included  in  its  award  of  damages, 
which  is  now  in  question,  w^as  not  based  on  any  consideration 
of  ' '  future  profits  arising  from  the  actual  raising  of  oysters  upon 
the  unplanted  area,  or  the  enhanced  value  of  the  same  from  a 
'set'  attached  to  the  material  spread  thereon,  but  is  based  upon 
a  comparison  of  the  market  value  of  the  planted  and  unplanted 
territory  at  the  time  fixed  in  the  contract  for  its  completion, 
and  while  the  result  of  such  planting  was  unknown."  This 
difference  in  market  value  was  fixed  at  $30  an  acre,  while  the 
contract  price  for  planting  (for  which  a  deduction  was  allowed 
in  ascertaining  the  exact  loss)  averaged  less  than  $14  an  acre. 
No  part  of  this  enhanced  value  of  over  $16  an  acre  could  be  at- 
tributed to  any  hardening  of  the  bottom,  by  which,  although  no 
set  were  obtained,  the  grounds  would  be  permanently  improved. 
This  was  explicitly  admitted  in  the  trial  by  counsel  for  the  plain- 
tiff; and,  although  that  circumstance  is  not  mentioned  in  the 
finding  of  the  trial  court,  as  the  defendant  specially  requested 
that  it  be  stated,  and  it  appears  in  an  extract  from  the  official 
stenographic  report  of  the  proceedings,  filed  with  the  request, 
which  is  agreed  by  counsel  for  both  parties  to  be  a  correct  narra- 
tive of  what  occurred,  w^e  consider  the  finding  as  if  it  had  been 
so  drawn  as  to  set  forth  the  admission  as  made.  It  follows  that 
the  expert  witnesses  and  the  court  must  have  viewed  the  in- 


COMPENSATORY  DAMAGES.  47 

crease  of  value  which  would  have  followed  the  execution  of  the 
contract,  as  coming  from  the  adaptation  of  the  grounds  to  oyster 
culture  during  the  spawning  season  then  about  to  open.  To 
allow  for  any  enhancement  of  value  on  that  account  is,  prac- 
tically, to  speculate  on  the  chances  of  catching  a  set  and  raising 
a  profitable  crop.  Such  consequences  were  too  remote  for  con- 
sideration, and  too  uncertain,  both  with  respect  to  their  nature 
and  to  the  cause  from  which  they  would  proceed.  Cohn  v.  Nor- 
ton, 57  Conn.  480,  494;  Howard  v.  Manufacturing  Co.,  139  U. 
S.  199. 

As  respects  the  area  necessarily  left  unplanted  in  consequence 
of  the  defendant's  default,  damages  (in  the  absence  of  special 
circumstances  calling  for  the  application  of  a  different  rule) 
should  have  been  limited  to  compensation  for  the  loss  of  the 
use  of  the  land  until  it  again  became  practicable  and  proper 
to  plant  or  otherwise  improve  it  for  oyster  cultivation,  in  the 
usual  course  of  the  oyster  growers'  business.  Such  loss  would, 
ordinarily,  be  the  fair  rental  value  of  the  grounds,  or,  if  this 
could  not  be  ascertained,  the  interest  on  their  market  value,  in 
their  unplanted  condition,  with  the  amount  chargeable  for  taxes 
upon  them,  for  the  period  in  question.  The  finding  states,  how- 
ever, that  the  plaintiff  owned  several  thousand  acres  of  oyster 
grounds,  only  a  portion  of  which  was  under  cultivation,  and  an 
extensive  plant  of  shops,  docks  and  oyster  steamers.  Of  these 
grounds,  475  acres  lay  off  Westport,  of  which  only  100  had  ever 
been  planted.  In  the  prosecution  of  the  oyster  business,  "a 
certain  area  of  oyster  ground  is  planted  each  year,  that  suc- 
cessive crops  may  be  matured  and  marketed  or  sold  as  seed 
oysters."  If  these  special  circumstances  were,  or  ought  to  have 
been,  knowTi  to  the  defendant  before  the  execution  of  the  con- 
tract in  suit,  and  if  the  plaintiff  could  show  that  the  failure  to 
plant  the  whole  of  the  Westport  grounds  so  disarranged  the  or- 
dinary and  natural  succession  of  his  crops,  or  otherwise  disturbed 
the  ordinary  and  natural  course  of  the  business  as  respects  the 
use  of  his  other  property,  that  he  suffered  special  damages  as 
a  probable  and  direct  result,  which  both  parties  ought,  in  reason, 
to  have  foreseen,  a  further  recovery  might  be  allowed,  upon  such 
an  amendment  of  the  complaint  as  to  apprise  the  defendant  of 
the  nature  of  the  loss  actually  sustained. 

The  plaintiff  has  alleged  that  he  incurred  expense  in  locating 
and  staking  out  the  place  in  the  river  where  the  dredging  was 


4:8  CLASSIFICATION  OF  DAMAGES. 

to  be  clone,  imd  securing  a  license  from  the  government  of  the 
United  States  for  dredging  there,  and  hiring  inspectors  for  the 
Avork,  and  for  scows  and  harrows  to  complete  the  distribution 
of  the  materia]  to  be  dredged  over  his  grounds,  and  steamers 
chartered  to  aid  in  the  same  work,  and  that  he  should  be  reim- 
b\n-sed  for  such  part  of  these  payments  as  was  properly  made  to 
secure  the  plaiding  of  the  portion  of  his  grounds  which  was  in 
fact  left  unplanted.  If  such  special  circumstances  existed,  and 
were  or  should  have  been  in  the  contemplation  of  the  parties 
when  the  contract  was  executed,  the  plaintiff's  claim  in  this  re- 
spect, also,  would  be  a  proper  one,  so  far  as  his  expenditures 
were  reasonably  necessary  for  the  purpose,  subject  to  a  deduc- 
tion for  any  benefits  which  he  may  have  otherwise  received  from 
them. 

There  is  error  in  the  award  of  the  damages  on  account  of  the 
implanted  oyster  grounds,  and  a  new  trial  is  granted  for  the 
sole  purpose  of  reassessing  the  damages  on  that  account,  in  ac- 
cordance with  the  principles  above  stated.  The  other  judges 
concurred. 


1)     Elements  of  Compensation. 
(1)     Loss  of  Time. 

LEEDS  V.  METROPOLITAN  GAS-LIGHT  CO. 

New  York,  1882.    90  N.  Y.  26. 

Finch,  J.  We  think  there  was  error  in  the  mode  of  submit- 
ting to  the  jury  the  question  of  damages.  Whether  there  v/as 
any  evidence  of  negligence  on  the  part  of  the  defendant  com- 
pany upon  which  the  verdict  can  rest,  has  been  the  principal 
controversy  on  the  appeal,  but  need  not  be  decided,  since  upon 
the  new  trial  which  must  result  the  facts  may  be  entirely  differ- 
ent. If  the  evidence  is  insufficient  now,  it  is  possible  that  it  may 
be  made  sufficient  then. 

The  plaintiff  was  injured  by  an  explosion  of  gas  in  the  cellar 
or  vault  of  the  house  occupied  by  him,  and  which  had  escaped 
from  a  break  in  the  defendant's  main.  The  character  of  his  in- 
juries was  described  by  the  evidence,  and  among  other  things 
it  was  proved  that  he  was  engaged  in  business  at  the  time  of 


COMPENSATORY    DAMAGES,  49 

the  injury,  but  had  not  been  able  to  attend  to  business  since. 
It  was  not  shown  what  his  business  was,  or  the  value  of  his  time, 
or  any  facts  as  to  his  occupation  from  which  that  value  could  be 
estimated.  The  jury  were  left  to  guess  or  speculate  upon  this 
value  without  any  basis  for  their  judgment,  so  far  as  loss  of  time 
was  an  element  of  the  damages  awarded.  The  court  charged 
that  the  plaintiff,  if  entitled  to  a  verdict,  was  "entitled  to  re- 
cover compensation  for  the  time  lost  in  consequence  of  confine- 
ment to  the  hous^  or  in  consequence  of  his  disability  to  labor 
from  the  injury  sustained."  The  defendant's  counsel  excepted 
to  this  portion  of  the  charge,  assigning  as  a  reason  or  ground 
of  the  exception,  that  there  was  no  proof  in  the  case  of  the 
value  of  such  time.  The  answer  made  on  behalf  of  the  plaintiff 
is  a  criticism  on  the  form  of  the  exception.  It  is  said  that  "as 
the  defendant 's  counsel  did  not  ask  the  court  to  instruct  the  jury 
that  there  was  no  evidence  of  the  value  of  plaintiff's  time,  the 
only  question  here  raised  is  whether  the  proposition  charged 
is  law. ' '  It  was  not  necessary  to  make  that  request.  The  court 
had  charged,  in  a  case  where  no  value  of  lost  time  had  been 
shown,  and  no  facts  on  which  an  estimate  of  such  value  could 
be  founded,  that  compensation  for  such  lost  time  could  be 
awarded  by  the  jury.  The  exception  was  aimed  at  that  precise 
proposition,  and  the  ground  upon  which  it  was  claimed  to  be 
erroneous  was  definitely  pointed  out.  The  charge,  therefore, 
can  only  be  defended  upon  two  grounds:  either,  that  evidence 
of  the  value  of  the  lost  time  was  given,  or,  if  not,  that  the  jury 
were  at  liberty  to  guess  at  and  speculate  upon  that  value,  and 
estimate  it  as  they  pleased.  The  first  ground  we  have  shown  to  be 
untenable,  and  the  exception  consequently  requires  us  to  de- 
termine the  second.  In  very  numerous  actions  for  negligence, 
both  those  where  death  had  resulted  and  which  were  prosecuted 
under  the  statute,  and  those  for  injuries  not  resulting  in  death, 
evidence  showing  the  occupation  or  business  of  the  injured  party 
and  tending  to  establish  his  earning  power  has  been  held  com- 
petent and  material.  (Grant  v.  City  of  Brooklyn,  41  Barb.  384; 
Masterton  v.  Village  of  Mount  Vernon,  58  N.  Y.  391 ;  Beisiegel 
v.  N.  Y.  Central  R.  R.  Co.,  40  Id.  10.)  And  that  is  so  because 
the  element  of  damages  which  consists  of  lost  time  is  purely  a 
pecuniary  loss  or  injury,  and  for  such  only  fair  and  just  com- 
pensation must  be  given,  and  the  jury  have  no  arbitrary  dis- 


50  CLASSIFICATION  O'v"  DAMAGES. 

cretion,  but  must  be  governed  by  the  weight  of  evidence.  (Me- 
Intyre  v.  N.  Y.  Central  R.  R.  Co.,  37  N.  Y.  289.)  The  rule  of 
recovery  is  compensation.  Where  the  loss  is  pecuniary  and  is 
present  and  actual  and  can  be  measured,  but  no  evidence  is 
given  showing  its  extent,  or  from  which  it  can  be  inferred,  the 
jury  can  allow  nominal  damages  only.  (Sedgwick  on  Damages, 
chap.  2,  p.  -47 ;  Brantingham  v.  Fay,  1  Johns.  Cas.  264 ;  N.'  Y. 
Dry  Dock  Co.  v.  ]\IcIntosh,  5  Hill,  290.)  In  the  present  case 
the  jury  knew  simply  that  time  was  lost  by  reason  of  incapacity 
to  labor.  They  were  bound  to  consider  it  of  some  value,  but 
could  not  go  beyond  nominal  damages,  and  give  compensation 
for  it  upon  an  arbitrary  standard  of  their  own.  This  they  were 
permitted  to  do.  Without  proof  of  the  extent  or  character  of 
the  plaintiff's  pecuniary  loss,  they  were  left  to  fix  it  as  they 
pleased.  Among  the  elements  of  damage  in  cases  of  injury  for 
negligence,  is  the  cost  of  the  cure,  the  bills  and  expenses  of 
medical  attendance.  Suppose  that  the  bare  fact  was  shown  that 
the  deceased  had  a  doctor,  but  the  length  of  his  attendance  was 
not  given,  the  amount  of  his  charges  not  sho-WTi,  would  it  do  to 
permit  the  jury  to  give  compensation  for  the  cost  of  the  cure 
upon  their  own  guess  or  speculation  as  to  its  amount?  For  pain 
and  suffering,  or  injuries  to  the  feelings,  there  can  be  no  measure 
of  compensation,  save  the  arbitrary  judgment  of  a  jury.  But 
that  is  a  rule  of  necessity.  Where  actual  pecuniary  damages 
are  sought,  some  evidence  must  be  given  showing  their  existence 
and  extent.  If  that  is  not  done,  the  jury  cannot  indulge  in  an 
arbitrary  estimate  of  their  own. 

The  judgment  should  be  reversed,  a  new  trial  granted,  costs 
to  abide  the  event. 


LUND  V.  TYLER. 

Iowa,  1901.     115  Iowa,  236, 

Action  to  recover  damages  for  assault  and  battery.  Verdict 
and  judgment  for  plaintiff.    Defendant  appeals. 

jMcClain,  J.  There  was  evidence  tending  to  show  that  at  the 
beginning  of  the  fight  which  resulted  in  the  injury  to  plain- 
tiff, the  plaintiff  had  challenged  the  defendant  to  combat,  using 
insulting  language  in  doing  so;  and  the  principal  complaint  of 
appellant  is  of  the  refusal  of  the  trial  court  to  instruct  that 
if  plaintiff,  by  his  actions  and  words,  invited  the  fight  m  which 


COMPENSATORY   DAMAGES.  51 

he  was  injured,  he  cannot  recover  damages  for  such  injuries. 
There  seems  to  be  some  authority  for  such  a  proposition,  and 
counsel  have  cited  Galbraith  v.  Fleming,  60  Mich.  408 ;  Smith  v. 
Simon,  69  ]\lich.  481.  But  the  weight  of  authority  is  that,  where 
a  combat  involves  a  breach  of  the  peace,  the  mutual  consent  of 
the  parties  thereto  is  to  be  regarded  as  unlawful,  and  as  not 
depriving  the  injured  party,  or  for  that  matter,  each  injured 
party,  from  recovering  damages  for  injuries  received  from  the 
unlawful  acts  of  the  other.  Shay  v.  Thompson,  59  Wis.  540; 
Stout  V.  Wren,  8  N.  C.  420 ;  McCue  v.  Klein,  60  Tex.  168 ;  State 
V.  Burnham,  56  Vt.  445.  This  view  of  the  law  is  stated  without 
qualification  in  Cooley,  Torts  (2d  Ed.)  187.  Insulting  conduct 
and  language  of  the  plaintiff  towards  the  defendants  might,  no 
doubt,  have  been  considered  in  mitigation  of  damages,  if  so 
pleaded ;  but  that  question  was  not  presented  in  the  town  court. 

Plaintiff,  as  a  witness,  testified  that  at  the  time  of  the  injury 
he  was  engaged  in  fishing  for  a  living,  and  that  he  lost  two 
weeks'  time  in  consequence  of  defendant's  act.  Appellant 
argues  that  plaintiff  was  improperly  allowed  to  answer  as  to  the 
reasonable  worth  of  his  time.  Certainly  plaintiff  might  recover 
for  loss  of  earnings  during  the  time.  The  business  was  one  in- 
volving not  speculative  profits  but  mainly  the  personal  efforts 
of  the  plaintiff,  the  profits  in  which  could  be  considered  as 
earnings,  and  therefore  loss  of  time  therein  might  be  shown  as 
resulting  in  loss  of  earnings.  Kinney  v.  Crocker,  18  Wis.  74, 
82.  It  seems  to  us  that  the  question  properly  called  for  an 
answer  as  to  what  plaintiff's  reasonable  earnings  during  such 
time  would  have  been.  If  defendant  desired  more  specific  in- 
formation, he  could  have  secured  it  by  cross-examination. 

Other  objections  to  evidence  seem  to  us  not  to  raise  any  ques- 
tion on  which  a  discussion  of  the  law  would  be  profitable. 

Affirmed. 


SMITH  V.  WHITTLESEY. 

Connecticut,  1906.     79   Conn.   189^ 
Appeal  from  Court  of  Common  pleas,  Hartford  County. 
Action  to  recover  damages  for  injury  caused  by  negligence  in 
driving  an  automobile  on  the  public  highway  and  for  treble  dam- 
ages under  Gen.  St.  1902,  §§  2035,  2036.     There  was  a  judgment 
for  plaintiff",  and  defendant  appeals. 


52  CLASSIFICATION  OF  DAMAGES. 

IIamersi-ey,  J.  In  Pannelco  v.  Jialdwin,  1  Conn.  317,  Chief 
Justice  Swift,  speaking  i'or  the  court,  said:  "In  actions  for  torts, 
where  the  hnv  necessarily  iiii[)lies  that  the  phiintitf  has  sustained 
damage  by  the  act  coniphiined  of,  it  is  not  necessary  to  make  an 
allegation  of  special  damages  in  the  declaration;  but  where  the 
law  does  not  necessarily  imply  such  damage  it  is  essential  to  the 
validity  of  the  declaration  that  the  resulting  damages  should  be 
stated  with  particularity."  We  have  uniformly  enforced  this 
technical  rule  of  pleading  as  well  since  as  before  the  adoption  of 
the  practice  law.  When  the  wrongful  act  complained  of  consists 
in  inflicting  a  severe  bodily  injury,  the  consequent  endurance  of 
pain  and  loss  of  time  are  a  necessary  direct  result  of  the  injury 
inflicted,  and  constitute  a  damage  which  the  law  implies  that  the 
plaintiff  has  sustained  by  the  act  complained  of.  Such  damage 
may  be  shown  under  the  general  allegation  of  damage,  and  need 
not  be  specially  stated.  Bristol  Mfg.  Co.  v.  Gridley,  28  Conn. 
201,  212.  Inability  to  follow  one's  ordinary  avocations,  conse- 
quent upon  an  injury  inflicted,  may  be  proved  to  characterize 
the  extent  of  such  injury;  but  when  damage  is  claimed  for 
special  consequences  which  must  depend  on  the  peculiar  circum- 
stances of  the  plaintiff  at  the  time  of  and  previous  to  the  injury, 
as  that  he  was  actually  engaged  in  some  special  business  yield- 
ing a  pecuniary  profit,  such  special  consequences  are  a  special 
damage  which  must  be  stated  with  particularity.  The  averment 
that  the  plaintiff  was  prevented  from  attending  to  his  ordinary 
business  serves  to  characterize  the  injury  and  its  extent  and 
permanence  in  a  general  way,  but  does  not  lay  the  foundation 
for  proof  of  special  damages.  Tomlinson  v.  Derby,  43  Conn. 
562,  567;  Taylor  v.  ^Monroe,  43  Conn.  36,  46,  affirmed  in  Eld- 
ridge  V.  Gorman,  77  Conn.  699. 

The  complainant  before  us  alleges  no  special  damage  involved 
in  a  loss  of  time  by  reason  of  the  peculiar  circumstances  of  the 
plaintiff,  and  alleges  no  loss  of  time  except  as  it  may  be  implied 
in  the  statement  of  the  injury  inflicted.  The  court  might  prop- 
erly have  instructed  the  jury  that,  in  determining  the  reasonable 
damage  necessarily  resulting  from  the  injury  inflicted,  they 
might  take  into  consideration  the  loss  of  time  and  pain  and 
.suffering,  mental  and  physical,  actually  proved  as  tending  to 
show  the  nature  and  extent  of  the  injury  and  enhance  the  dam- 
age actually  suffered.  But  we  cannot  find  any  satisfactory  reason 
for  treating  as  the  substantial  equivalent  of  this  the  instrue- 


COMPENSATORV    DAMxVGES.  53 

tion  the  court  did  give.  It  appears  from  the  finding  that  there 
was  evidence  tending  to  show  that  the  plaintiff  lost  some  time  on 
account  of  his  injuries,  but  that  there  was  substantially  no  evi- 
dence of  the  money  value  of  the  time  lost.  This  state  of  the 
evidence  might  have  justified  the  court  in  telling  the  jury  that 
the  loss  of  time  proved  might  be  considered  in  determining  the 
extent  of  the  injury  and  the  amount  of  damage  necessarily  suf- 
fered therefrom,  but  did  not  justify  the  court  in  assuming  that 
special  damages  were  properly  claimed  and  in  instructing  the 
jury  as  it  did  in  respect  to  assessing  such  damages.  The  court  in 
substance  told  the  jury  that,  in  addition  to  the  damage  implied 
by  law  from  the  infliction  of  an  injury  of  the  extent  proved, 
they  should  assess  as  damages  the  pecimiary  loss  to  the  plaintiff 
by  reason  of  the  loss  of  time  proved  and  in  the  absence  of  any 
evidence  of  the  value  of  his  time  to  the  plaintiff  and  of  the 
exact  data  from  which  they  could  compute  the  amoimt  of  dam- 
age to  him  for  that  loss,  they  must  assess  the  damage  on  this  ac- 
count, if  damages  have  been  proved,  at  such  reasonable  sum  as 
would  fairly  compensate  the  plaintiff  for  his  loss  on  account  of 
time  lost.  We  think  that,  in  view  of  the  state  of  the  pleadings 
and  evidence  and  claims,  this  instruction  was  erroneous,  and 
that  it  was  calculated  to  induce  the  jury  to  believe  they  were 
authorized  to  ascertain  the  money  value  of  the  time  lost  by  the 
plaintiff  to  him,  and  to  assess  as  special  damage  that  pecuniary 
loss,  and,  in  the  absence  of  any  proof  of  value  or  of  exact  data 
for  computing  the  amount  lost,  they  were  bound  to  conjecture 
some  reasonable  amount  which,  in  their  judgment,  would  fairly 
compensate  the  plaintiff.  An  ascertainment  of  the  amount  of 
general  damages,  or  damages  implied  by  law  as  the  necessary 
results  of  a  bodily  injury  w^rongfully  inflicted,  is  ex  necessitate 
rei  largely  controlled  by  conjecture.  But,  in  ascertaining  the 
amount  of  a  pecuniary  loss  not  necessarily  a  result  of  the  injury 
but  dependent  for  its  existence  and  amount  upon  facts  and  cir- 
cumstances requiring  appropriate  evidence,  the  jury  must  be 
governed  by  such  evidence,  and,  in  its  absence,  are  not  permit- 
ted to  resort  to  mere  conjecture.  Gold  v.  Ives,  29  Conn.  119,  124. 
*     *     * 

The  only  error  apparent  in  the  record  or  claimed  upon  appeal 
is  one  affecting  the  assessment  of  damages.  Other  material  is- 
sues submitted  to  the  jury  have  been  found  for  the  plaintiff,  to 
wit:  that  while  plaintiff  and  defendant  were  traveling  the  same 


54  CLASSIFICATION  OF  DAMAGES. 

course  on  the  public  highway,  the  defendant  carelessly  drove 
his  vehicle  against  that  of  the  plaintiff  and  hurled  the  plaintiff 
against  the  wheel  of  his  vehicle,  whereby  the  plaintiff  was  severely 
injured;  that  the  plaintiff",  as  well  as  the  defendant,  at  the  time 
of  the  injury,  was  traveling  in  a  vehicle  for  the  conveyance  of 
persons  as  described  in  sections  2035,  2036,  Gen.  St.  1902.  These 
issues  have  been  legally  settled,  and  the  error  of  the  court  in 
respect  to  damages  may  be  fully  corrected  without  a  retrial  of 
these  issues.  In  such  a  case  it  is  plain  that  the  issues  rightly 
settled  ought  not  to  be  reopened,  and  this  court  has  the  power 
to  qualify  its  order  for  a  new  trial  by  limiting  the  retrial  to  that 
part  of  the  case  in  which  alone  there  is  any  error.  Davenport 
V.  Bradley,  4  Conn.  309.  *  *  *  We  think  the  present  case 
calls  for  the  application  of  this  principle,  and  that  the  new  trial 
should  be  limited  to  the  assessment  by  a  jury  of  the  damage  al- 
leged in  the  complaint. 
'  There  is  error,  and  a  new  trial  is  ordered  limited  to  the  assess- 
ment of  damages.     In  this  opinion  the  other  judges  concurred. 


(2)     Earning  Foiver. 
JOHNSTON  V.  GREAT  WESTERN  RAILWAY  COMPANY. 

L.  K.   2  K.  B.   1904,  250. 

The  action  was  brought  to  recover  damages  for  personal  injur- 
ies.    The  only  question  was  as  to  the  amount  of  damages. 

The  muscles  of  the  plaintiff's  left  thigh  were  seriously  injured, 
and  he  was  under  medical  treatment  for  some  months.  After 
he  was  able  to  walk  about  again  his  left  knee  was  very  liable  to 
give  way,  and  on  several  occasions  he  fell  in  consequence  of  this. 

The  action  was  tried  by  Grantham  J.  with  a  jury.  The 
medical  evidence  showed  that  the  plaintiff' 's  leg  would  probably 
never  be  in  the  same  condition  as  before  the  accident;  that,  if 
he  would  undergo  an  operation  (which  he  was  willing  to  do),  the 
state  of  the  leg  would  in  all  probability  be  much  improved ;  that 
there  was  necessarily  some,  though  but  small,  risk,  attending 
the  operation ;  and  that  if  it  was  successful  he  would  still  have 
to  be  very  careful,  especially  in  going  up  or  down  a  ladder  or 
in  moving  about  among  machinery. 

The  plaintiff  had  been  trained  as  an  engineer,  and  had  passed 
examinations  with  great  distinction,  and  had  obtained  a  first- 


COMPENSATORY    DAMAGES.  00 

class  certificate.  Tlis  intention  was  to  obtain,  if  possible,  the 
appointment  of  a  superintending  marine  engineer.  He  had  good 
prospects  of  obtaining  such  an  appointment,  because  his  uncles 
were  the  owners  of  a  line  of  steamships,  called  the  Johnston 
Line.  At  the  time  of  the  accident  the  plaintiff  was  residing  with 
his  father,  and  was  employed  by  him  at  a  salary  of  3  1.  a  week 
on  some  engineering  business,  in  connection  with  which  he  was 
travelling  when  the  accident  happened. 

Verdict  for  3000  1.  and  defendants  apply  for  a  new  trial. 

Vaughan- William  L.  j.  *  *  *  If  the  Court,  from  the 
circumstances  of  the  case  and  the  amount  of  the  damages,  can 
draw  the  inference  that  the  jury  must  have  applied  a  wrong 
measure  of  damage  in  contravention  of  the  direction  of  the  judge, 
the  Court  may  order  a  new  trial,  although  it  is  not  in  a  position 
to  say  that  the  mere  quantum  of  excess  is  so  large  that  no  reason- 
able jury  could  have  arrived  at  such  an  amount.  I  would  refer 
to  the  following  passage  in  the  judgment  of  Cockbum  L.  C.  J., 
4  Q.  B.  D.  at  p.  407;  "But  we  think  that  a  jury  cannot  be  said 
to  take  a  reasonable  view  of  the  case  unless  they  consider  and 
take  into  account  all  the  heads  of  damage  in  respect  of  which 
a  plaintiff  complaining  of  a  personal  injury  sustained ;  the  pain 
undergone ;  the  effect  on  the  health  of  the  sufferer,  according 
to  its  degree  and  its  probable  duration  as  likely  to  be  temporary 
or  permanent ;  the  expenses  incidental  to  attempts  to  effect  a 
cure,  or  to  lessen  the  amount  of  injury ;  the  pecuniary  loss  sus- 
tained through  inability  to  attend  to  a  profession  or  business  as 
to  which,  again,  the  injury  may  be  of  a  temporary  character, 
or  may  be  such  as  to  incapacitate  the  party  for  the  remainder 
of  his  life.  If  a  jury  have  taken  all  these  elements  of  dam- 
age into  consideration,  and  have  awarded  what  they  deemed 
to  be  fair  and  reasonable  compensation  under  all  the  circum- 
stances of  the  case,  a  Court  ought  not,  imless  under  very  excep- 
tional circumstances,  to  disturb  their  verdict.  But  looking  to 
the  figures  in  the  present  case,  it  seems  to  us  that  the  jury  must 
have  omitted  to  take  into  account  some  of  the  heads  of  damage 
which  were  properly  involved  in  the  plaintiff's  claim."  So  in 
the  present  case,  if  I  could  come  to  the  conclusion  that,  looking 
at  the  figures,  the  jury  must  have  taken  into  account  some  head 
or  some  measure  of  damage  not  properly  involved  in  or  applied 
to  the  plaintiff's  claim.  I  should  say  that  we  ought  to  order  a 
new  trial.     The  Court  of  Appeal  affirmed  the  judgment  of  Cock- 


56  CLASSIFICATION  OF  DAMAGES. 

burn  L.  C.  J.,  and  James  L.  J.  said,  5  Q.  B.  D.  at  p.  85:  "We 
agree  that  judges  have  no  right  to  overrule  the  verdict  of  a  jury 
as  to  the  amount  of  damages,  merely  because  they  take  a  differ- 
ent view,  and  think  that  if  they  had  been  the  jury  they  would 
have  given  more  or  would  have  given  less,  still  the  verdicts  of 
juries  as  to  the  amount  of  damages  are  subject,  and  must,  for  the 
sake  of  justice,  be  subject,  to  the  supervision  of  a  Court  of  first 
instance,  and  if  necessary  of  a  Court  of  Appeal,  in  this  way, 
that  is  to  say,  if  in  the  judgment  of  the  Court  the  damages  are 
imreasonably  large  or  unreasonably  small,  then  the  Court  is 
boimd  to  send  the  matter  for  reconsideration  by  another  jury." 
It  seems  to  me  that  there  is  nothing  in  these  words  of  James  L.  J. 
inconsistent  with  Lord  Esher's  rule  in  Praed  v.  Graham,  24  Q. 
B.  D.  53.  The  Lord  Justice  continued:  "The  Queen's  Bench 
Division  came  to  the  concliLsion  in  this  case  that  the  amount  of 
the  damages  was  unreasonably  small,  and  for  the  reasons  which 
were  given  by  the  Lord  Chief  Justice,  pointing  out  certain 
topics  which  the  jury  could  not  have  taken  into  consideration. 
I  am  of  opinion,  and  I  believe  my  colleagues  are  also  of  opinion, 
for  the  same  reasons  and  upon  the  same  grounds,  that  the  dam- 
ages are  unreasonably  small,  to  what  extent,  of  course,  we  must 
not  speculate,  and  have  no  business  to  say." 

Now,  in  my  opinion,  the  only  way  in  which  the  figure  of  the 
damages  and  the  circumstances  of  the  present  case  could  prove 
that  the  jury  in  measuring  the  damages  took  into  consideration 
topics  which  they  ought  not  to  have  taken  into  consideration,  or 
applied  a  measure  of  damage  which  they  ought  not  to  have  ap- 
plied, would  be,  if  we  could  draw  the  inference  that  the  amount 
of  the  verdict  proved  that  the  jury  had  disregarded  the  fact  to 
which  their  attention  was  called  by  Grantham  J.,  that  the  acci- 
dents of  life  and  other  elements  ought  to  be  taken  into  con- 
sideration so  as  to  prevent  a  jury  from  giving  a  plaintiff  such 
a  sum  as  would  be  simply  an  investment,  enabling  him  to  do 
nothing  to  earn  his  livelihood.  Now  one  could  onlj^  come  to  such 
a  conclusion  if  it  could  properly  be  said  that  no  jury,  having 
regard  to  the  evidence,  could  have  put  tlie  difference  between  the 
prospective  earnings  of  the  plaintiff  if  he  had  been  uninjured 
and  those  earnings  after  his  injury  at  a  higher  figure  than,  say, 
Lx  a  year,  and  then  if  you  found  that  the  amount  of  the  ver- 
dict, after  deducting  all  special  damage  and  all  damages  given 
for  personal  pain  and  suffering,  was  a  sum  which  equalled  or 


COMPENSATORY    DAMAGES,  57 

exceeded  the  sum  which  would  purchase  a  life  annuity  for  a 
person  of  the  plaintiff's  age  equal  to  the  difference  to  which  I 
have  referred.  In  such  a  case  I  think  a  new  trial  might  be 
ordered  without  reference  to  any  perversity  of  mind  of  the  jury 
in  regard  to  the  quantum.  In  any  case  in  which  you  are  able 
to  draw  the  inference  that  the  jury  either  included  a  topic  which 
ought  not  to  have  been  included,  or  measured  the  damages  by  a 
measure  which  ought  not  to  have  been  applied,  I  think  there 
ought  to  be  a  new  trial.  But  I  am  not  prepared  to  say  that 
that  is  so  in  the  present  case. 

It  is,  no  doubt,  very  difficult  in  the  present  case  to  estimate 
the  damages,  but  I  think  that,  taking  the  evidence  as  a  whole, 
it  is  not  unreasonable  to  say  that  the  jury  were  entitled  to  take 
into  consideration  as  a  material  and  substantial  matter  the  pos- 
sibility that  the  plaintiff  would  never  be  able  to  accept  the  posi- 
tion of  a  superintending  marine  engineer.  It  is  obvious  that  he 
was  intended  for  that ;  at  the  time  of  the  accident  that  was  the 
intention  of  his  life.  He  was  just  putting  a  finishing  touch  to 
his  education,  not  in  respect  of  the  special  matter  of  marine  en- 
gineering, but  in  respect  of  the  general  knowledge  which  every 
engineer  ought  to  have,  and  he  was  doing  this  because,  having 
regard  to  the  interest  of  his  family  in  shipping,  it  was  reasonably 
certain  that  as  soon  as  he  was  qualified  he  would  obtain  such  a 
post;  and  that  he  was  qualified,  and  highly  qualified,  there  can 
be  no  doubt. 

What,  then,  ought  we  to  do  if  there  is  evidence  which  would 
justify  a  jury  in  coming  to  a  conclusion  that  it  was  extremely 
doubtful  whether  the  plaintiff  ever  would  be  able  to  fill  such 
post?  Apparently  from  the  evidence  the  position  of  a  superin- 
tending marine  engineer  is  a  well-paid  position,  some  such 
engineers  getting  as  high  a  salary  as  1500  1.  a  year,  and  many 
getting  from  700  1.  to  1000  1.  Under  these  circumstances  it  is 
extremely  difficult  to  form  any  positive  opinion  as  to  the  amount 
of  the  difference  in  the  plaintiff's  prospective  earnings — the  dif- 
ference between  what  he  would  have  got  if  there  had  been  no 
accident  and  what  he  would  be  able  to  get  since  the  accident ; 
and  I  do  not  see  my  way,  by  reason  of  the  amount  of  the  dam- 
ages or  of  the  evidence,  to  say  that  the  jury  have  taken  into 
consideration  either  topics  or  a  measure  of  damages  which  they 
ought  not  to  have  taken  into  consideration.     *     *     * 

Stirling,  L.  J.     I  am  of  the  same  opinion,  and  T  have  really 


58  CLASSIFICATION  Ol''  DAMAGE,-;. 

very  little  to  add ;  but,  out  of  respect  to  the  argument  which  has 
been  addressed  to  us,  I  wish  to  state  very  shortly  the  grounds 
on  which  I  have  arrived  at  my  conclusion.  The  question  is  as  to 
the  amount  of  damages  to  which  the  plaintiff  is  entitled  by  reason 
of  a  railway  accident.  The  plaintiff  is  a  young  man  of  twenty- 
eight,  Avho  has  been  trained  for  the  position  of  a  superintending 
marine  engineer.  He  has  trained  himself  for  that,  not  merely 
because  engineering  is  a  profession  to  which  he  desires  to  apply 
himself,  but  because  he  had  the  prospect  through  his  relatives 
of  filling  such  a  post.  At  the  time  of  the  accident  he  had  not 
obtained  that  position.  He  was  then  only  in  the  employment  of 
his  father's  firm  temporarily^  at  salary  of  3  1.  a  week,  and 
living  at  home.  Then  occurred  this  accident,  and  after  it  he 
made  an  attempt  to  obtain  employment  in  connection  with  some 
steamers  abroad;  his  application  was  refused  on  the  ground  of 
his  physical  condition.  The  salary  attached  to  that  appoint- 
ment would  have  been  over  500  1.  a  year,  rising  annually.  There 
is  ample  evidence  that  he  was  well  qualified  to  fill  that  position. 
That  is  how  matters  stood  at  the  time  of  the  trial.  But  it  was 
said  that  he  might  submit  to  an  operation  which,  if  successful, 
would  greatly  improve  his  condition,  and  he  was  willing  to  sub- 
mit to  it.  Of  course,  there  is  always  a  certain  amount  of  risk 
attending  any  operation,  but  in  the  present  state  of  surgical  skill, 
as  I  read  the  evidence,  the  danger  in  this  •  case  would  not  be 
great.  But  what  would  be  the  position  supposing  that  the 
operation  was  successful?  Dr.  Pepper,  the  plaintiff's  principal 
medical  witness,  said:  "Impossible  for  him  ever  to  be  as  good 
as  before  the  accident"  (that  is,  even  if  the  operation  was  suc- 
cessful). "I  do  not  think  he  can  or  ought  to  take  any  place 
requiring  him  to  go  up  and  down  ladders."  Now  that  being 
the  general  outline  of  the  case,  for  I  think  there  is  no  great  dif- 
ference in  the  medical  opinions,  the  question  is  whether  the  jury 
have  come  to  a  conclusion  which  we  can  call  in  question  by 
reason  of  their  having  given  a  verdict  for  3000  1.  Of  that  sum 
about  450  1.  is  in  respect  of  expenses  and  loss  of  income,  which  at 
the  date  of  the  trial  had  been  already  incurred.  There  remains, 
therefore,  a  sum  of  2550  1.,  which  is  the  compensation  for  the 
prospective  loss  to  this  young  man  in  his  profession.  Look- 
ing at  all  the  circumstances,  and  weighing  them,  I  am  unable 
to  come  to  the  conclusion  that  the  jury  have  either  taken  into 
consideration  matters  w^hich  they  ought  not  to  have  taken  into 


COMPENSATORY   DAMAGES.  59 

consideration  or  that  the  sum  is  one  which  twelve  sensible  men 
could  not  reasonably  have  awarded.  In  these  circumstances, 
although  I  do  not  think  I  should  myself  have  come  to  the  same 
conclusion  as  to  tlie  amount  of  damages,  I  do  not  see  my  way  to 
interfere  with  the  verdict  and  judgment. 

Application  refused. 


(3)     Loss  of  Wages. 
WALKER  V.  CITY  OF  PHILADELPHIA. 

Pennsylvania,  1900.     195  Pa.  168. 

Action  to  recover  for  personal  injuries  to  wife  of  plaintiff. 

Mitchell,  J.  *  *  *  There  was  also  error  on  the  subject 
of  damages,  in  permitting  plaintiff's  daughter  to  testify  to  what 
she  was  earning  in  her  employment  as  a  dressmaker,  which  she 
gave  up  to  wait  on  her  mother  after  the  injury.  Conceding 
(though  the  sufficiency  of  the  evidence  is  questionable)  that 
plaintiff  had  proved  an  express  contract  to  pay  his  daughter  for 
services  which,  as  a  member  of  the  family,  were  prima  facie  pre- 
sumed to  be  rendered  gratuitously  (Goodhart  v.  Railroad  Co., 
177  Pa.  St.  1),  yet  the  measure  of  compensation  for  which  the 
city  could  be  held  liable  was  the  ordinary  wages  of  such  at- 
tendance. What  the  daughter  had  earned  or  could  earn  at  her 
independent  trade  was  wholly  irrelevant  and  misleading. 


CAMPARETTI  v.  UNION  RY.  CO. 

New  York,  1904.     95  App.  Div.  66. 

HiRSCHBERG,  P.  J.  This  appeal  presents  but  one  question  for 
review,  viz.,  the  accuracy  of  the  charge  of  the  court  to  the  effect 
that  the  jury  might  award  to  the  plaintiff  whatever  sum  they  saw 
fit  to  allow  him  for  loss  of  earnings  during  the  time  he  was  absent 
from  his  work  because  of  the  per.sonal  injuries  complained  of. 
He  was  injured  while  a  passenger  on  one  of  the  defendant's  cars, 
on  December  8,  1903,  and  he  alleged  in  his  complaint  that  by 
reason  of  such  injury  he  was  "entirely  incapacitated  from  at- 
tending to  any  business  whatsoever  for  a  period  of  several 
weeks."  A  bill  of  particulars  was  afterw^ards  filed  by  him,  stat- 
ing the  nature  of  his  injuries,  and  a  further  bill  was  also  filed 
in  reference  to  his  loss  of  earnings,  stating  that  "plaintiff  is  a 
stone  and  brick  mason,  and  earns  $4  a  day.    He  was  totally  in- 


60  CLASSIFICATION  OF  DAMAGES. 

capacitated  for  a  period  oi  about  three  weeks  and  a  half  after 
the  accident,  being  conlined  to  his  room." 

No  evidence  was  given  on  the  trial  of  the  amount  of  the 
plaintiff's  wages  or  earnings.  There  was  proof  that  his  doctor's 
bill  amounted  to  $20.    The  court  charged  the  jury  as  follows : 

"The  maximum  that  you  may  find,  if  you  do  find  for  the 
plaintiff,  will  be  $249,  made  up  in  his  claim  and  bill  of  particu- 
lars, of  three  weeks  and  a  half  at  $4  a  day  as  stone  mason,  and 
$20  which  the  doctor  says  he  has  charged  for  services  for  some- 
thing like  12  or  13  visits.  The  balance  would  represent  the  suffer- 
ing as  much  as  you  say  you  think  he  was  entitled  to  under  the 
circumstances,  provided  you  find  for  the  plaintiff. ' ' 

The  defendant  excepted  to  the  charge  as  to  the  $4  a  day,  where- 
upon the  court  charged  that : 

"In  reference  to  earning  $4  a  day  that  he  was  detained  from 
his  work,  I  think  he  testified,  as  a  stone  mason,  22  days,  and,  the 
amount  of  the  salary  not  being  stated,  you  may  allow  him  what 
you  think  is  right  and  fair,  and  an  honest  compensation  to  him 
for  being  kept  from  his  work." 

Exception  was  taken  to  this,  and  the  court  then  said : 

"I  will  not  charge  that  if  the  attorney  for  the  defendant  ob- 
jects, inasmuch  as  there  seems  to  be  a  difference  of  opinion 
whether  or  not  there  was  any  testimony  given  as  to  how  much  the 
plaintiff  earned  at  his  trade.  I  will  leave  that  matter  to  the  jury. 
You  may  allow  him  such  sum  as  j^ou  see  fit,  from  the  testimony 
that  you  have  heard,  to  compensate  him  for  the  22  days  away 
from  his  work,  and  a  balance  of  $20  for  doctor's  fees,  and  as 
much  as  you  see  fit  for  his  suffering. ' ' 

This  was  also  excepted  to,  the  defendant  insisting  that  only  a 
nominal  allowance  could  be  made  for  loss  of  earnings.  The  ver- 
dict of  the  jury  was  for  $249,  the  maximum  amount  stated  by 
the  court,  including  an  allowance  of  $4  per  day  for  the  loss  of 
wages.  There  could  be  no  recovery,  hoAvever,  for  this  item  beyond 
a  nominal  sum,  in  the  absence  of  proof  of  the  amount  of  the  loss. 
Leeds  v.  I\Ietropolitan  Gas  Light  Co.,  90  N.  Y.  26 ;  Staal  v.  The 
Grand  Street  &  Newtown  R.  R.  Co.,  107  N.  Y.  625;  Baker  v.  M. 
R.  R.  Co.,  118  N.  Y.  537 ;  Metz  v.  Metropolitan  St.  R.  R.  Co., 
82  App.  Div.  168. 

The  judgment  should  be  reversed. 

Judgment  of  the  municipal  court  reversed,  and  new  trial  or- 
dered :  costs  to  abide  the  event.    All  concur. 


COMPENSATORY    DAilAGES.  61 

WYMAN  V.  DEADY. 

Connecticut,  190(5.     79  Conn.  414. 

Action  to  recover  damages  caused  by  the  act  of  the  defendants 
in  procuring  the  plaintiff,  by  threats  and  intimidation,  to  be  dis- 
charged by  his  employers.  Verdict  for  the  plaintiff.  Defendants ' 
motion  to  set  aside  the  verdict  denied  by  the  court.  Appeal  by 
defendants. 

Hall,  J.  The  amended  complaint  in  this  action  contains  sub- 
stantially these  allegations :  The  plaintiff  is  a  painter,  decorator, 
and  wood  finisher,  and,  as  such,  has  been  in  the  employ  of  David 
R.  and  Frank  ]\I.  Hawley,  who  are  painters  and  contractors.  The 
defendant,  the  Painters,  Decorators  &  Paper  Hangers  of  America, 
Local  Union  No.  481,  a  voluntary  association  located  in  Hart- 
ford, is  a  trade  union  whose  proceedings  are  secret,  and  which 
is  organized  for  the  purpose  of  maintaining  high  rates  of  w'ages, 
reducing  the  hours  of  labor,  preventing  the  employment  of  non- 
union men,  and  similar  purposes.  The  defendant  Deady  is  a 
member  of  said  association,  and  its  business  agent  or  walking 
delegate. 

On  or  before  the  25th  of  October,  1905,  the  defendants  "mali- 
ciously and  unlawfully  conspired,  combined,  and  confederated 
with  each  other,  and  with  other  persons  to  the  plaintiff  unknown, 
to  injure  the  plaintiff,  and  to  prevent  him  from  working  at  his 
trade,  and  from  obtaining  employment,"  and  on  said  day,  "in 
pursuance  of  said  conspiracy,  willfully,  and  maliciously,  and  by 
means  of  threats  and  intimidations,  induced  the  said  David  R. 
and  Frank  ^I.  Hawley  to  discharge  the  plaintiff  from  their  em- 
ploy" and  "because  of  the  threats  and  intimidations  of  the  de- 
fendants" the  said  Hawleys,  on  said  day,  discharged  the  plaintiff 
from  their  employ.  At  that  time  the  plaintiff  was  receiving 
wages  at  the  rate  of  $3  per  day.  Since  his  discharge  he  has  been 
unable  to  obtain  steady  employment,  and  has  thereby  lost  a  large 
sum  of  money,  which  he  would  otherwise  have  earned,  and  "has 
been  greatly  injured  in  his  business,  and  has  been  greatly  dam- 
aged by  the  unlawful  action  of  the  defendants."  The  complaint 
is  dated  November  16,  1905,  and  claims  $1,500  damages.  The 
answer  in  effect  denies  the  above-stated  allegations  of  the  com- 
plaint. The  jury  rendered  a  verdict  for  the  plaintiff  for  $425 
damages.  The  defendants  filed  a  motion  to  set  aside  the  verdict 
and  for  a  new  trial,  upon  the  ground  that  it  was  against  the 


(32  CLASSIFICATION  OF  DAMAGES. 

evidence,  and  that  the  damages  awarded  were  excessive,  which 
motion  was  denied  by  the  trial  court.  The  denial  of  said  motion 
is  the  only  error  assigned  in  the  appeal.  The  decision  of  the  trial 
judge  should  be  sustained  if  it  appears  from  the  printed  record 
before  us  that  there  was  some  evidence  upon  which  the  jury  could 
reasonably  have  found  the  issues  submitted  to  them  in  favor  of 
the  plaintiff,  and  could  properly  have  awarded  him  damages  to 
the  amoimt  named  in  the  verdict.  Birdseye's  Appeal,  77  Conn. 
623-625. 

The  defendants  contend  that  the  record  contains  no  evidence 
of  the  alleged  conspiracy,  nor  of  the  alleged  malice,  at  least,  upon 
the  part  of  the  union,  nor  of  any  authority  of  Deady  from  the 
union  to  make  the  claimed  threats;  and  that  as  it  appears  from 
*he  plaintiff's  owti  testimony  that  he  was  unemployed  but  86 
days  during  the  period  between  the  day  of  his  discharge,  and 
thg  date  of  the  commencement  of  this  action,  and  could  have 
earned  but  $3  a  day,  the  damages  recoverable  could  not  have 
exceeded  $258.  Section  1296  of  the  General  Statutes  of  1902 
makes  it  a  criminal  offense  to  threaten  or  use  any  means  to  in- 
timidate any  person  to  compel  him  to  do  or  abstain  from  doing 
against  his  will  any  act  which  such  person  has  a  right  to  do.  To 
deprive  a  workman  of  his  employment  by  threatening  and  in- 
timidating his  employer  is  a  criminal  offense  under  this  statute. 
State  V.  Glidden,  55  Conn.  46-74.  That  one  who,  by  such  means, 
has  so  injured  an  employe  would  also  be  liable  in  damages  in  a 
civil  action  is  not  questioned  in  this  action.  When  such  an 
injury  results  from  the  execution  of  a  conspiracy  it  is  the  wrong- 
ful act  done  in  carrying  out  the  concerted  plan,  and  not  the  con- 
spiracy itself  which  furnishes  the  real  ground  for  a  civil  action. 
Savill  V.  Roberts,  1  Ld.  Raymond,  374.  Hutchins  v.  Hutchins, 
7  Hill  (N.  Y.)  107. 

The  gist,  therefore,  of  the  present  action  is  not  the  alleged  con- 
spiracy, but  the  injury  to  the  plaintiff  caused  by  the  unlawful 
acts  of  the  defendants  in  procuring  his  dismissal  by  threatening 
and  intimidating  his  employers.  Bulkley  v.  Storer,  2  Day,  531 
To  entitle  the  plaintiff  to  a  verdict  against  both  defendants  no 
further  proof  of  a  conspiracy  was  required  than  that  they  were 
joint  tort-feasors  in  procuring  the  dismissal  of  the  plaintiff  by 
means  of  such  threats  and  intimidation ;  and  had  the  proof  been 
that  but  one  of  the  defendants  so  procured  the  discharge  the 


COMPENSxiTORY   DAMAGES.  63 

plaintiff,  under  section  760  of  the  General  Statutes  of  1902,  would 
have  been  entitled  to  a  verdict  against  that  one. 

Neither  was  it  necessary  for  the  plaintiff,  to  entitle  him  to  a 
verdict  under  the  allegations  of  the  complaint,  to  prove  any 
other  malice  than  that  which  the  law  might  imply  from  the  un- 
lawful act  proved.  The  allegations  of  conspiracy  and  of  malice 
contained  in  the  complaint  were  neither  of  them  essential  to  a 
sufficient  statement  of  the  plaintiff 's  cause  of  action.  The  former 
may  be  regarded  either  as  an  averment  of  a  fact,  the  proof  of 
which  might  aid  the  plaintiff  in  establishing  a  joint  liability  of 
the  defendants,  or  like  the  averment  of  malice,  as  an  allegation 
of  a  fact  in  aggravation  of  the  injury  complained  of.  Robertson 
V.  Parks,  76  Md.  118.    Garing  v.  Frazer,  76  Me.  37. 

Upon  the  question  of  whether  the  procurement  of  the  plaintiff 's 
discharge  by  the  means  alleged,  was  the  joint  act  of  the  de- 
fendants, the  testimony  of  the  plaintiff,  of  his  said  employers, 
of  the  defendant  Deady,  and  of  other  officers  and  members  of  the 
union,  and  the  records  of  the  doings  at  various  meetings  of  the 
union  were  presented  in  the  trial  court.  It  is  not  our  purpose 
to  repeat  that  evidence  here.  It  is  sufficient  for  us  to  say  of  it 
that  the  record  shows  that  there  was  evidence  before  the  jury 
from  which,  in  our  opinion,  they  might  reasonably  have  con- 
cluded that  the  plaintiff  was  discharged  from  his  employment 
on  account  of  the  threats  to  his  employers,  and  the  means  to'  in- 
timidate them  made  and  used  by  the  defendant  Deady  for  the 
purpose  of  compelling  the  plaintiff 's  discharge ;  that  Deady  was 
the  business  agent  and  so-called  walking  delegate  of  the  defendant 
union,  and  did  said  acts  not  only  with  the  knowledge  and  ap- 
proval, but  by  the  authority  of  the  union.  Such  facts  would 
render  both  defendants  liable  as  joint  tort-feasors.  The  damages 
awarded  are  not  necessarily  excessive.  Punitive  damages  might 
have  been  awarded  even  against  the  union  if  it  either  directed 
Deady  to  do  the  particular  acts  complained  of,  or  if  it  afterwards 
approved  them  (Maisenbacker  v.  Society  Concordia,  71  Conn. 
369-379),  or  the  jury  may  have  found,  as  alleged  in  the  com- 
plaint, that  the  plaintiff  was  otherwise  injured  in  his  business, 
than  by  the  loss  of  employment  during  said  period. 

There  is  no  error. 

The  other  Judges  concurred. 


64  CLASSIFICATION  OF  DAMAGES. 

(4)     LonN  of  Profits. 

MASTERTON  v.   THE  :^IAYOR  OP  BROOKLYN. 

New  York.  1845.     7   Hill,  62. 

The  plnintiffs  agreed  to  furnish  and  deliver  marble  from  the 
quarry  of  Kain  and  Morgan  for  building  the  City  Hall  in  Brook- 
lyn. The  amount  required  was  88819  feet,  for  which  they 
were  to  be  paid  a  specified  price.  Plaintiffs  then  contracted  with 
the  owners  of  the  quarry  for  the  marble.  When  the  plaintiffs 
had  delivered  14779  feet  and  had  on  hand  at  the  quarry  3308 
feet  ready  for  delivery,  the  City  of  Brooklyn  stopped  the  work 
and  obliged  the  plaintiffs  to  break  their  contract  with  Kain  and 
^Morgan,  without  any  fault  on  the  part  of  the  plaintiffs.  Plain- 
tiffs sought  to  recover  the  profits  of  the  contract  and  also  the 
damages  to  which  they  were  subjected  through  the  violation  of 
the  subcontract  for  the  marble  at  the  quarry. 

Nelson,  C.  J.  The  damages  for  the  marble  on  hand,  ready 
to  be  delivered,  was  not  a  matter  in  dispute  on  the  argument. 
The  true  measure  of  allowance  in  respect  to  that  item  was  con- 
ceded to  be  the  difference  between  the  contract  price,  and  the 
market  value  of  the  article  at  the  place  of  delivery.  This  loss 
the  plaintiffs  had  actually  sustained,  regard  being  had  to  their 
rights  as  acquired  under  the  contract. 

The  contest  arises  out  of  the  claim  for  damages  in  respect 
to  the  remainder  of  the  marble  which  the  plaintiffs  had  agreed 
to  furnish,  but  which  they  were  prevented  from  furnishing  by 
the  suspension  of  the  work  in  July,  1837.  This  portion  was 
not  ready  to  be  delivered  at  the  time  the  defendants  broke  up 
the  contract,  but  the  plaintiffs  w^ere  then  willing  and  offered 
to  perform  in  all  things  on  their  part,  and  the  case  assumes 
that  they  were  possessed  of  sufficient  means  and  ability  to  have 
done  so. 

The  plaintiffs  insist  that  the  gains  they  would  have  real- 
ized, over  and  above  all  expenses,  in  case  they  had  been  allowed 
to  perform,  the  contract,  enter  into  and  properly  constitute  a 
part  of  the  loss  and  damage  occasioned  by  the  breacli ;  and  they 
were  accordingly  permitted,  in  the  course  of  the  trial,  to  give 
evidence  tending  to  show  what  amount  of  gains  they  would 
have  realized  if  the  contract  had  been  carried  into  execution. 

On   the  other  hand,  the   defendants  say  that  this   claim  ex- 


COMPENSATORY   DAMAGES.  65 

ceeds  the  measure  of  damages  allowed  by  the  common  law  for 
the  breach  of  an  executory  contract.  They  insist  that  it  is 
simply  a  claim  for  the  profits  anticipated  from  a  supposed  good 
bargain,  and  that  these  are  too  imcertain,  speculative,  and  re- 
mote to  form  the  basis  of  a  recovery. 

It  is  not  to  be  denied  that  there  are  profits  or  gains  deriv- 
able from  a  contract  which  are  uniformly  rejected  as  too  con- 
tingent and  speculative  in  their  nature,  and  too  dependent  upon 
the  fluctuation  of  markets  and  the  chances  of  business,  to  enter 
into  a  safe  or  reasonable  estimate  of  damages.  Thus,  any  sup- 
posed successful  operation  the  party  might  have  made,  if  he 
had  not  been  prevented  from  realizing  the  proceeds  of  the  con- 
tract at  the  time  stipulated,  is  a  consideration  not  to  be  taken 
into  the  estimate.  Besides  the  uncertain  and  contingent  issue 
of  such  an  operation  in  itself  considered,  it  has  no  legal  or  neces- 
sary connection  with  the  stipulations  between  the  parties,  and 
cannot  therefore  be  presumed  to  have  entered  into  their  con- 
sideration at  the  time  of  contracting.  It  has  accordingly  been 
held  that  the  loss  of  any  speculation  or  enterprise  in  which  a 
party  may  have  embarked,  relying  on  the  proceeds  to  be  de- 
rived from  the  fulfillment  of  an  existing  contract,  constitutes  no 
part  of  the  damages  to  be  recovered  in  case  of  breach.  So  a 
good  bargain  made  by  a  vendor,  in  anticipation  of  the  price 
of  the  article  sold,  or  an  advantageous  contract  of  resale  made 
by  a  vendee,  confiding  in  the  vendor's  promise  to  deliver  the 
article,  are  considerations  always  excluded  as  too  remote  and 
contingent  to  affect  the  question  of  damages.  Clare  v.  May- 
nard,  6  Adol.  &  Ellis,  519,  and  Cox  v.  Walker,  in  the  note  to 
that  case ;  Walker  v.  Moor,  10  Bam.  &  Cress,  416 ;  Cary  v.  Gru- 
man,  4  Hill,  627,  628 ;  Chitty  on  Contracts,  458,  870. 

The  civil  law  is  in  accordance  with  this  rule.  "In  general." 
says  Pothier,  "the  parties  are  deemed  to  have  contemplated 
only  the  damages  and  interest  w^hich  the  creditor  might  suffer 
from  the  non-performance  of  the  obligation,  in  respect  to  the  par- 
ticular thing  which  is  the  object  of  it,  and  not  such  as  may  have 
been  incidentally  occasioned  thereby  in  respect  to  his  other 
affairs;  the  debtor  is  therefore  not  answerable  for  these;  but 
only  for  such  as  are  suffered  with  respect  to  the  thing  w^hich 
is  the  object  of  the  obligation,  damyii  et  mtcresse  ipsam  rem  non 
Jiahitam.''  1  Evans'  Poth.  91;  and  see  Dom.  B.  3,  tit.  5,  §  2,  art. 
3,  4,  5,  6. 

5 


66  CLASSIFICATION  OF  DAMAGES. 

When  the  books  and  cases  speak  of  the  profits  anticipated 
from  a  good  bargain  as  matters  too  remote  and  uncertain  to  be 
taken  into  the  account  in  ascertaining  the  true  measure  of 
damages,  they  usually  have  reference  to  dependent  and  col- 
lateral engagements  entered  into  on  the  faith  and  in  expec- 
tation of  the  performance  of  the  principal  contract.  The  per- 
formance or  non-performance  of  the  latter  may  and  doubtless 
often  does  exert  a  material  influence  upon  the  collateral  enter- 
prises of  the  party;  and  the  same  may  be  said  as  to  his  gen- 
eral affairs  and  business  transactions.  But  the  influence  is 
altogether  too  remote  and  subtile  to  be  reached  by  legal  proof 
or  judicial  investigation.  And  besides,  the  consequences,  when 
injurious,  are  as  often  perhaps  attributable  to  the  indiscretion 
and  fault  of  the  party  himself,  as  to  the  conduct  of  the  delinquent 
contractor.  His  condition,  in  respect  to  the  measure  of  dam- 
ages, ought  not  to  be  worse  for  having  failed  in  his  engagement 
to  a  person  whose  affairs  were  embarrassed,  than  if  it  had  been 
made  with  one  in  prosperous  or  affluent  circumstances.  Dom. 
B.  3,  tit.  5,  §  2,  art.  4. 

But  profits  or  advantages  which  are  the  direct  and  imme- 
diate fruits  of  the  contract  entered  into  between  the  parties, 
stand  upon  a  different  footing.  These  are  part  and  parcel  of 
the  contract  itself,  entering  into  and  constituting  a  portion  of 
its  very  elements;  something  stipulated  for,  the  right  to  the 
enjoyment  of  which  is  just  as  clear  and  plain  as  to  the  fulfil- 
ment of  any  other  stipulation.  They  are  presumed  to  have 
been  taken  into  consideration  and  deliberated  upon  before  the 
contract  was  made,  and  formed  perhaps  the  only  inducement 
to  the  arrangement.  The  parties  may  indeed  have  entertained 
different  opinions  concerning  the  advantages  of  the  bargain, 
each  supposing  and  believing  that  he  had  the  best  of  it;  but 
this  is  mere  matter  of  judgment  going  to  the  formation  of  the 
contract,  for  which  each  has  shown  himself  willing  to  take  the- 
responsibility,  and  must  therefore  abide  the  hazard. 

Such  being  the  relative  position  of  the  contracting  parties, 
it  is  difficult  to  comprehend  why,  in  case  one  party  has  de- 
prived the  other  of  the  gains  or  profits  of  the  contract  by 
refusing  to  perform  it,  this  loss  should  not  constitute  a  proper 
item  in  estimating  the  damages.  To  separate  it  from  the  general 
loss  would  seem  to  be  doing  violence  to  the  intention  and  under- 
standing of  the  parties,  and  severing  the  contract  itself. 


COMPENSATORY   DAMAGES.  67 

The  civil-law  writers  plainly  include  the  loss  of  profits,  in 
cases  like  the  present,  within  the  damages  to  which  the  com- 
plaining party  is  entitled.  They  hold  that  he  is  to  be  indem- 
nified for  "the  loss  which  the  non-perfonnance  of  the  obli- 
gation has  occasioned  him,  and  for  the  gain  of  which  it  has 
deprived  him."  1  Evans'  Poth.  90;  Dom.  B.  3,  tit.  5,  §  2, 
art.  6,  12.  And  upon  looking  into  the  common-law  authori- 
ties bearing  upon  the  question,  especially  the  later  ones,  they 
will  be  found  to  come  nearly  if  not  quite  up  to  the  rule  of  the 
civil  law. 

In  Boorman  v.  Nash,  9  Bam.  &  Cress.  145,  it  appeared  that 
the  defendant  contracted  in  November  for  a  quantity  of  oil, 
one  half  to  be  delivered  to  him  in  February  following,  and 
the  rest  in  March;  but  he  refused  to  receive  any  part  of  it. 
And  the  court  held  that  the  plaintiff  was  entitled  to  the  dif- 
ference between  the  contract  price,  and  that  which  might  have 
been  obtained  in  market  on  the  days  when  the  contract  ought 
to  have  been  completed.  See  M'Lean  v.  Dunn,  4  Bing.  722. 
The  case  of  Leigh  v.  Paterson,  8  Taunt.  540,  was  one  in  which 
the  vendor  was  sued  for  not  delivering  goods  on  the  31st  of 
December,  according  to  his  contract.  It  appeared  that,  in  the 
month  of  October  preceding,  he  had  apprised  the  vendee  that 
the  goods  would  not  be  delivered,  at  which  time  the  market  value 
was  considerably  less  than  on  the  31st  of  December.  The  court 
held  that  the  vendee  had  a  right  to  regard  the  contract  as  sub- 
sisting until  the  31st  of  December,  if  he  chose,  and  recover  the 
difference  between  the  contract  price,  and  the  market  value  on 
that  day.     See  also  Gainsford  v.  Carroll,  2  Barn.  &  Cress.  624. 

The  above  are  cases,  it  will  be  seen,  in  which  the  profits  of 
a  good  bargain  were  regarded  as  a  legitimate  item  of  dam- 
ages, and  constituted  almost  the  only  ground  of  recovery.  And 
it  appears  to  me  that  we  have  only  to  apply  the  principle  of 
these  cases  to  the  one  in  hand,  in  order  to  determine  the  measure 
of  damages  which  must  govern  it.  The  contract  here  is  for  the 
delivery  of  marble,  "WTought  in  a  particular  manner,  so  as  to 
be  fitted  for  use  in  the  erection  of  a  certain  building.  The 
plaintiff's  claim  is  substantially  one  for  not  accepting  goods 
bargained  and  sold;  as  much  so  as  if  the  subject  matter  of  the 
contract  had  been  bricks,  rough  stone,  or  any  other  article  of 
commerce  used  in  the  process  of  building.  The  only  difficulty 
or  embarrassment  in  applying  the  general  rule  grows  out  of  the 


68  CLASSIFICATION  OF  DAMAGES, 

fact  that  the  article  iu  questiou  does  not  appear  to  have  any 
well-ascertained  market  value.  But  this  cannot  change  the 
principle  which  must  govern,  but  only  the  mode  oi"  ascertaining 
the  actual  value  of  the  article,  or  r<ither  the  cost  to  the  party 
producing  it.  Where  the  article  has  no  market  value,  an  in- 
vestigation into  the  constituent  elements  of  the  cost  to  the  party 
who  has  contracted  to  furnish  it,  becomes  necessary;  and  that, 
compared  Avith  the  contract  price,  will  afford  the  measure  of 
damages.  The  jury  will  be  able  to  settle  this  upon  evidence  of 
the  outlays,  trouble,  risk,  etc.,  which  enter  into  and  make  up 
the  cost  of  the  article  in  the  condition  required  by  the  con- 
tract, at  the  place  of  delivery.  If  the  cost  equals  or  exceeds  the 
contract  price,  the  recovery  will  of  course  be  nominal ;  but  if  the 
contract  price  exceeds  the  cost,  the  difference  w^ill  constitute  the 
measure  of  damages. 

'It  has  been  argued  that,  inasmuch  as  the  furnishing  of  the 
marble  would  have  run  through  a  period  of  five  years — of 
which  about  one  year  and  a  half  only  had  expired  at  the  time 
of  the  suspension — the  benefits  which  the  party  might  have 
realized  from  the  execution  of  the  contract,  must  necessarily 
be  speculative  and  conjectural ;  the  court  and  jury  having  no 
certain  data  upon  which  to  make  the  estimate.  If  it  were 
necessary  to  make  the  estimate  upon  any  such  basis,  the  argu- 
ment would  be  decisive  of  the  present  claim.  But  in  my 
judgment  no  such  necessity  exists.  AVhere  the  contract,  as 
in  this  case,  is  broken  before  the  arrival  of  the  time  for  full  per- 
formance, and  the  opposite  party  elects  to  consider  it  in  that 
light,  the  market  price  on  the  day  of  the  breach  is  to  govern 
in  the  assessment  of  damages.  In  other  words,  the  damages 
are  to  be  settled  and  ascertained  according  to  the  existing  state 
of  the  market  at  the  time  the  cause  of  action  arose,  and  not  at 
the  time  fixed  for  full  performance.  The  basis  upon  which  to 
estimate  the  damages,  therefore,  is  just  as  fixed  and  easily  as- 
certained in  cases  like  the  present,  as  in  actions  predicated 
upon  a  failure  to  perform  at  the  day. 

It  will  be  seen  that  we  have  laid  altogether  out  of  view  the  sub- 
contract of  Kain  &  ]\Iorgan,  and  all  others  that  may  have  been 
entered  into  by  the  plaintiffs  as  preparatory  and  subsidiary  to 
the  fulfilment  of  the  principal  one  with  the  defendants.  In- 
deed, I  am  unable  to  comprehend  how  these  can  be  taken  into 
the  account,  or  become  the  subject  matter  of  consideration  at 


COMPENSATORY   DAMAGES.  69 

all,  in  settling  the  amount  of  damages  to  be  recovered  for  a 
breach  of  the  principal  contract.  The  defendants  had  no  con- 
trol over  or  participation  in  the  making  of  the  sub-contracts, 
and  are  certainly  not  to  be  compelled  to  assume  them  if  im- 
providently  entered  into.  On  the  other  hand,  if  they  were  made  so 
as  to  secure  great  advantages  to  the  plaintiffs,  surely  the  defend- 
ants are  not  entitled  to  the  gains  which  might  be  realized  from 
them.  In  any  aspect,  therefore,  these  sub-contracts  present  a 
most  unfit  as  well  as  unsatisfactory  basis  upon  which  to  esti- 
mate the  real  damages  and  loss  occasioned  by  the  default  of  the 
defendants.  The  idea  of  assuming  that  the  plaintiffs  were 
necessarily  compelled  to  break  all  their  sub-contracts,  as  a  con- 
sequence of  the  breach  of  the  principal  one,  and  that  the  dam- 
ages to  which  they  may  thus  be  subjected  ought  to  enter  into 
the  estimate  of  the  amount  recoverable  against  the  defendants 
is  too  hypothetical  and  remote  to  lead  to  any  safe  or  equitable 
result.  And  yet,  the  fact  that  these  sub-contracts  must  ordi- 
narily be  entered  into  preparatory  to  the  fulfilment  of  the  prin- 
cipal one,  shows  the  injustice  of  restricting  the  damages  in 
cases  like  the  present,  to  compensation  for  the  work  actually 
done,  and  the  item  of  materials  on  hand.  We  should  thus 
throw  the  whole  loss  and  damage  that  would  or  might  arise  out 
of  contracts  for  further  materials,  etc.,  entirely  upon  the  party 
not  in  fault. 

If  there  was  a  market  value  of  the  article  in  this  case,  the 
question  would  be  a  simple  one.  As  there  is  none,  however, 
the  parties  will  be  obliged  to  go  into  an  inquiry  as  to  the 
actual  cost  of  furnishing  the  article  at  the  place  of  delivery; 
and  the  court  and  jury  should  see  that  in  estimating  this 
amount,  it  be  made  upon  a  substantial  basis,  and  not  left  to 
rest  upon  the  loose  and  speculative  opinions  of  witnesses.  The 
constituent  elements  of  the  cost  should  be  ascertained  from 
sound  and  reliable  sources;  from  practical  men,  having  ex- 
perience in  the  particular  department  of  labor  to  which  the 
contract  relates.  It  is  a  very  easy  matter  to  figure  out  large 
profits  upon  paper ;  but  it  will  be  foimd  that  these,  in  a  great 
majority  of  the  cases,  become  serioasly  reduced  when  sub- 
jected to  the  contingencies  and  hazards  incident  to  actual 
performance.  A  jury  should  scrutinize  with  care  and  watch- 
fulness any  speculative  or  conjectural  account  of  the  cost  of 
furnishing  the  article  that  would  result  in  a  very  unequal  bar- 


70  CLASSIFICATION  OP  DAMAGES. 

gain  between  the  parties,  by  which  the  gains  and  benefits,  or, 
in  other  words,  the  measure  of  damages  against  the  defend- 
ants, are  unreasonably  enhanced.  They  should  not  overlook 
the  risks  and  contingencies  which  are  almost  inseparable  from 
the  execution  of  contracts  like  the  one  in  question,  and  which 
increase  the  expense  independently  of  the  outlays  in  labor  and 
capital. 

These  views,  it  will  be  seen,  when  contrasted  with  the  law 
as  expounded  and  applied  by  the  Circuit  Judge,  necessarily 
lead  to  the  granting  of  a  new  trial. 

Beardsley,  J.  The  Circuit  Judge  clearly  erred  in  that  part 
of  his  charge  to  the  jury  which  related  to  the  contract  of  the 
plaintiffs  with  Kain  &  Morgan.  No  damages  are  allowable  on 
account  of  this  contract,  nor  am  I  able  to  see  how  it  can  be 
regarded  as  relevant  evidence  upon  any  disputed  point  con- 
nected with  the  amount  for  which  the  defendants  are  liable. 

The  main  question  in  the  case  arises  out  of  the  claim  of 
the  plaintiffs  in  respect  to  that  portion  of  their  contract  with 
the  defendants  which  remained  wholly  unexecuted  in  July, 
1837.  I  think  the  plaintiffs  are  entitled  to  recover  the  amount 
they  would  have  realized  as  profits,  had  they  been  allowed 
fully  to  execute  their  contract.  The  defendants  are  not  to 
gain  by  their  wrongful  act,  nor  is  that  to  deprive  the  plain- 
tiffs of  the  advantages  they  had  secured  by  the  contract,  and 
which  would  have  resulted  to  them  from  its  performance.  The 
jury  must  therefore  ascertain  what  it  would  probably  have 
cost  them  to  complete  the  contract,  over  and  above  the  materials 
on  hand;  including  the  value  of  the  marble  required,  the 
labor  of  quarrying  and  preparing  it  for  use,  the  expense  of  trans- 
portation, superintendence,  and  insurance  against  all  hazards, 
together  with  every  other  expense  incident  to  the  fulfilment 
of  the  undertaking.  The  aggregate  of  these  expenditures  is  to 
be  deducted  from  the  amount  which  would  be  payable  for  the 
performance  of  this  part  of  the  contract,  according  to  the  prices 
therein  stipulated,  and  the  balance  will  be  the  damages  which 
the  jury  should  allow  for  the  item  under  consideration. 

Eemote  and  contingent  damages,  depending  on  the  result 
of  successive  schemes  or  investments,  are  never  allowed  for 
the  violation  of  any  contract.  But  profits  to  be  earned  and 
made  by  the  faithful  execution  of  a  fair  contract  are  not  of 
this  description.     A  right  to  damages  equivalent  to  such  profits 


COMPENSATORY    DAMxVGES. 


71 


results  directly  and  immediately  from  the  act  of  the  party  v,'ho 
prevents  the  contract  from  being  performed. 

Where  a  vendor  has  agreed  to  sell  and  deliver  personal 
property  at  a  particular  day,  and  fails  to  perform  his  contract, 
the  vendee  may  recover  in  damages  the  difference  between  the 
contract  price,  and  the  market  value  of  the  property  at  the 
time  when  it  should  have  been  delivered.  Chit,  on  Contracts, 
445,  5th  Am.  ed. ;  Dey  v.  Dox,  9  Wend.  129 ;  Gainsford  v.  Car- 
roll, 2  Barns.  &  Cress.  624;  Shepperd  v.  Hampton,  3  Wheat. 
200 :  Quarles  v.  George,  20  Pick.  400 ;  Shaw  v.  Nudd,  8  Id.  9 ; 
2  Phill.  Ev.  104.  So,  if  a  person  who  has  agreed  to  purchase 
goods  at  a  certain  price  refuses  to  receive  them,  he  must  pay 
the  difference  between  their  market  value  and  the  enhanced 
price  which  he  contracted  to  pay.  2  Stark.  Ev.  1201,  7th  Am. 
ed. ;  Boorman  v.  Nash,  9  Barn.  &  Cress.  145. 

These  principles  are  strictly  applicable  to  the  present  case. 
In  reason  and  justice  there  can  be  no  difference  between  the 
damages  which  should  be  recovered  for  the  breach  of  an  ordi- 
nary agreement  to  buy  or  sell  goods,  and  one  to  procure  build- 
ing materials,  fit  them  for  use,  and  deliver  them  in  a  finished 
state,  at  a  stipulated  price.  In  neither  case  should  the  wrong- 
doer be  allowed  to  profit  by  his  wrongful  act.  The  party  who 
is  ready  to  perform  is  entitled  to  a  full  indemnity  for  the  loss 
of  his  contract.  He  should  not  be  made  to  suffer  by  the  de- 
linquency of  the  other  party,  but  ought  to  recover  precisely 
what  he  would  have  made  by  performance.  This  is  as  sound 
in  morals  as  it  is  in  law.  Shannon  v.  Comstock,  21  Wend.  461 ; 
Miller  v.  Mariner's  Church,  7  Greenl.  51;  Shaw  v.  Nudd,  8 
Pick.  13 ;  Swift  v.  Barnes,  16  Id.  196 ;  Royalton  v.  The  Royal- 
ton  &  Woodstock  Turnpike  Co.,  14  Verm.  Rep.  311. 

The  plaintiffs  were  not  bound  to  wait  till  the  period  had 
elapsed  for  the  complete  performance  of  the  agreement,  nor 
to  make  successive  offers  of  performance,  in  order  to  recover 
all  their  damages.  They  might  regard  the  contract  as  broken 
up,  so  far  as  to  absolve  them  from  making  further  efforts  to 
perform  and  give  them  a  right  to  recover  full  damages  as  for 
a  total  breach.  I  am  not  prepared  to  say  that  the  plaintiffs 
might  not  have  brought  successive  suits  on  this  covenant,  had 
they  from  time  to  time  made  repeated  offers  to  perform  on 
their  part,  which  were  refused  by  the  defendants ;  but  this  the 
plaintiffs  were  not  bound  to  do. 


72  CLASSIFICATION  OF  DAMAGES. 

There  can  bo  no  serious  difficult}'  in  assessing  damages  ac- 
cording to  the  i)rineiple.s  which  have  been  stated.  The  con- 
tract was  made  in  1830;  and,  according  to  the  testimoiiy, 
about  live  years  would  have  been  a  rd'asouable  time  for  iLs 
execution.  That  time  has  gone  by.  The  expense  of  execut- 
ing the  contract  must  necessarily  depend  upon  the  prices  of 
labor  and  materials.  If  prices  tiuctuated  during  the  period 
in  question,  that  may  be  shown  by  testimony.  In  this  respect 
there  is  no  need  of  resorting  to  conjecture;  for  all  the  data 
necessary  to  form  a  correct  estimate  of  the  entire  expense  of 
executing  the  contract,  can  now  be  furnished  by  witnesses. 

If  the  cause  had  been  brought  to  trial  before  the  time  for 
completing  the  contract  expired,  it  would  have  been  im- 
practicable to  make  an  accurate  assessment  of  the  damages. 
This  is  no  reason,  however,  why  the  injured  party  should  not 
have  his  damages;  although  the  difficulty  in  making  a  just 
assessment  in  such  a  case  has  been  deemed  a  sufficient  ground 
for  decreeing  specific  performance.  Adderly  v.  Dixon,  1  Sim. 
&  Stu.  607,  and  the  cases  there  cited.  In  Royalton  v.  Tiie 
Royalton  &  Woodstock  Turnpike  Co.,  14  Verm.  R.  311,  32-1, 
an  action  was  brought  on  a  contract  which  had  about  tw^elve 
years  to  run.  And  the  court  held,  in  granting  a  new  trial,  that 
the  rule  of  damages  "should  have  been  to  give  the  plaintiffs 
the  difference  between  what  they  were  to  pay  the  defendants, 
and  the  probable  expense  of  performing  the  contract;  and 
thus  assess  the  entire  damages  for  the  remaining  twelve  years." 
No  rule  which  will  be  absolutely  certain  to  do  justice  between 
the  parties  can  be  laid  down  for  such  a  case.  Some  time  must 
be  taken  arbitrarily  at  which  prices  are  to  be  ascertained  and 
estimated;  and  the  day  of  the  breach  of  the  contract,  or  of 
the  commencement  of  the  suit,  should  perhaps  be  adopted  under 
such  circumstances.  But  w^e  need  not,  in  the  present  case,  ex- 
press any  opinion  on  that  point.  No  conjectural  estimate  is 
required  to  ascertain  what  would  have  been  the  expense  of  a 
complete  execution  of  this  contract ;  but  the  state  of  the  market, 
in  respect  to  prices,  is  now^  susceptible  of  explicit  and  intelligible 
proof.  And  where  that  is  so,  it  seems  to  me  unsuitable  to  adopt 
an  arbitrary  period :  especially  as  the  estimate  of  damages  must 
in  any  event  be  somewhat  conjectural. 

I  think  the  defendants  are  entitled  to  a  new  trial,  and  that 
the  damages  should  be  assessed  upon  the  principles  stated. 


COMPENSATORY   DAMAGES.  73 

Bronson,  J.  As  the  marble  had  no  market  value,  the  ques- 
tion of  profits  involves  an  inquiry  into  the  cost  of  the  rough 
material  in  the  quarry,  and  the  expense  of  raising,  dressing, 
and  transporting  it  to  the  place  of  delivery.  There  may  have 
been  fluctuations  in  the  prices  of  labor  and  materials  between 
the  day  of  the  breach  and  the  time  when  the  contract  was  to 
have  been  fully  performed ;  and  this  makes  the  question  upon 
which  my  brethren  are  not  agreed.  I  concur  in  opinion  with 
the  Chief  Justice,  that  such  fluctuations  in  prices  should  not 
be  taken  into  the  account  in  ascertaining  the  amount  of  dam- 
ages, but  that  the  court  and  jurj^  should  be  governed  entirely 
by  the  state  of  things  which  existed  at  the  time  the  contract 
was  broken.  This  is  the  most  plain  and  simple  rule :  it  will 
best  preserve  the  analogies  of  the  law;  and  will  be  as  likely 
as  any  other  to  do  substantial  justice  to  both  parties. 

New  trial  granted. 


GRIFFIN  V.  COLVER. 

New  York,  1858.     16  X.  Y.  489. 

Selden,  J.  The  only  point  made  by  the  appellants  is,  that 
in  estimating  their  damages  on  account  of  the  plaintiff's  failure 
to  furnish  the  engine  by  the  time  specified  in  the  contract,  they 
should  have  been  allowed  what  the  proof  showed  they  might 
have  earned  by  the  use  of  such  engine,  together  with  their  other 
machinery,  during  the  time  lost  by  the  delay.  This  claim  was 
objected  to,  and  rejected  upon  the  trial  as  coming  within  the  rule 
which  precludes  the  allowance  of  profits,  by  way  of  damages, 
for  the  breach  of  an  executory  contract. 

To  determine  whether  this  rule  was  correctly  applied  by  the 
referee,  it  is  necessary  to  recur  to  the  reason  upon  which  it  is 
founded.  It  is  not  a  primary  rule,  but  is  a  mere  deduction 
from  that  more  general  and  fundamental  rule  which  requires 
that  the  damages  claimed  should  in  all  cases  be  sho^^^l,  by  clear 
and  satisfactory  evidence,  to  have  been  actually  sustained.  It  is 
a  well  established  rule  of  the  common  law  that  the  damages  to 
be  recovered  for  a  breach  of  contract  must  be  shown  with  cer- 
tainty, and  not  left  to  speculation  or  conjecture ;  and  it  is  under 
this  rule  that  profits  are  excluded  from  the  estimate  of  damages 
in  such  cases,  and  not  because  there  is  anything  in  their  nature 
which   should  per  se   prevent  their  allowance.     Profits  which 


74  CI^VSSIFICATION  OP  DAMAGES. 

would  certainly  liave  been  realized  but  for  the  defendant's  de- 
fault are  recoverable ;  those  which  are  speculative  or  contingent 
are  not. 

Hence,  in  an  action  for  the  breach  of  a  contract  to  transport 
goods,  the  difference  between  the  price,  at  the  point  where  the 
goods  are  and  that  to  which  they  were  to  be  transported,  is  taken 
as  the  measure  of  damages;  and  in  an  action  against  a  vendor 
for  not  delivermg  the  chattels  sold,  the  vendee  is  allowed  the 
market  price  upon  the  day  fixed  for  the  delivery.  Although  this, 
in  both  cases,  amounts  to  an  allowance  of  profits,  yet,  as  those 
profits  do  not  depend  upon  any  contingency,  their  recovery  is 
permitted.  It  is  regarded  as  certain  that  the  goods  would  have 
been  worth  the  established  market  price,  at  the  place  and  on  the 
day  when  and  w^here  they  should  have  been  delivered. 

On  the  other  hand,  in  cases  of  illegal  capture,  or  of  the  in- 
surance of  goods  lost  at  sea,  there  can  be  no  recovery  for  the 
probable  loss  of  profits  at  the  port  of  destination.  The  principal 
reason  for  the  difference  between  these  cases  and  that  of  the  fail- 
ure to  transport  goods  upon  land  is,  that  in  the  latter  case  the 
tim.e  when  the  goods  should  have  been  delivered,  and  conse- 
quently that  when  the  market  price  is  to  be  taken,  can  be  as- 
certained with  reasonable  certainty;  while  in  the  former  the 
fluctuation  of  the  markets  and  the  contingencies  affecting  the 
length  of  the  voyage  render  every  calculation  of  profits  spec- 
ulative and  unsafe. 

There  is  also  an  additional  reason,  viz.,  the  difficulty  of  ob- 
taining reliable  evidence  as  to  the  state  of  the  markets  in  foreign 
ports ;  that  these  are  the  true  reasons  is  shown  by  the  language  of 
Mr.  Justice  Story,  in  the  case  of  the  Schooner  Lively,  1  Gallis. 
315,  which  was  a  case  of  illegal  capture.  He  says :  ' '  Independ- 
ent, however,  of  all  authority,  I  am  satisfied  upon  principle  that 
an  allowance  of  damages,  upon  the  basis  of  a  calculation  of 
profits,  is  inadmissible.  The  rule  would  be  in  the  highest  degree 
unfavorable  to  the  interests  of  the  community.  The  subject 
would  be  involved  in  utter  uncertainty.  The  calculation  would 
proceed  upon  contingencies,  and  would  require  a  knowledge 
of  foreign  markets  to  an  exactness  in  point  of  time  and  value 
which  w^ould  sometimes  present  embarrassing  obstacles.  Much 
would  depend  upon  the  length  of  the  voyage  and  the  season  of 
the  arrival ;  much  upon  the  vigilance  and  activity  of  the  master^ 


COMPENSATORY   DAMAGES.  lO 

and  much  upon  the  momentary  demand.  After  all,  it  would  be 
a  calculation  upon  conjectures  and  not  upon  facts." 

Similar  languiige  is  used  in  the  cases  of  the  Amiable  Nancy, 
3  Wheat.  546,  and  L'Amistad  de  Rues,  5  Wheat.  385.  Indeed, 
it  is  clear  that  whenever  profits  are  rejected  as  an  item  of  dam- 
ages, it  is  because  they  are  subject  to  too  many  contingencies, 
and  are  too  dependent  upon  the  fluctuations  of  markets  and  the 
chances  of  business,  to  constitute  a  safe  criterion  for  an  estimate 
of  damages.  This  is  to  be  inferred  from  the  cases  in  our  own 
courts.  The  decision  in  the  case  of  Blanchard  v.  Ely,  21  Wend. 
342,  must  have  proceeded  upon  this  ground,  and  can,  as  I  ap- 
prehend, be  supported  upon  no  other.  It  is  true  that  Judge 
Cowen,  in  giving  his  opinion,  quotes  from  Pothier  the  following 
rule  of  the  civil  law,  viz. :  "In  general,  the  parties  are  deemed 
to  have  contemplated  only  the  damages  and  injury  which  the 
creditor  might  suffer  from  the  non-performance  of  the  obliga- 
tions in  respect  to  the  particular  thing  which  is  the  object  of 
it,  and  not  such  as  may  have  been  accidentally  occasioned  there- 
by m  respect  to  his  own  (other)  affairs."  But  this  rule  had  no 
application  to  the  case  then  before  the  court.  It  applies  only 
to  eases  where,  by  reason  of  special  circumstances  having  no 
necessary  connection  with  the  contract  broken,  damages  are 
sustained  which  would  not  ordinarily  or  naturally  flow  from 
such  breach:  as  where  a  party  is  prevented  by  the  breach  of 
one  contract  from  availing  himself  of  some  other  collateral  and 
independent  contract  entered  into  with  other  parties,  or  from 
perfoming  some  act  in  relation  to  his  own  business  not  neces- 
sarily connected  with  the  agreement.  An  instance  of  the  latter 
kind  is  where  a  Canon  of  the  church,  by  reason  of  the  non-de- 
livery of  a  horse  pursuant  to  agreement,  was  prevented  from  ar- 
riving at  his  residence  in  time  to  collect  his  tithes. 

In  such  cases  the  damages  sustained  are  disallowed,  not  be- 
cause they  are  uncertain,  nor  because  they  are  merely  conse- 
quential or  remote,  but  because  they  cannot  be  fairly  considered 
as  having  been  within  the  contemplation  of  the  parties  at  the 
time  of  entering  into  the  contract.  Hence  the  objection  is 
removed,  if  it  is  shown  that  the  contract  was  entered  into  for  the 
express  purpose  of  enabling  the  party  to  fulfil  his  collateral 
agreement,  or  perform  the  act  supposed.    (Sedg.  on  Dam.,  ch.  3.) 

In  Blanchard  v.  Ely  the  damages  claimed  consisted  in  the  loss 
of  the  use  of  the  very  article  which  the  plaintiff  had  agreed  to 


76  CLASSIFICATION  OF  DAMAGES. 

t'on.struet ;  and  were,  therefore,  in  the  phiinest  sense,  the  direct 
and  proximate  result  of  the  breach  alleged.  Moreover,  that  use 
was  contemplated  by  the  parties  in  entering  into  the  contract, 
and  constituted  the  object  for  which  the  steamboat  was  built. 
It  is  clear,  therefore,  that  the  rule  of  Pothier  had  nothing  to  do 
with  the  ease.  Those  damages  must  then  have  been  disallo-wed, 
because  they  consisted  of  prolits  depending,  not,  as  in  the  case 
of  a  contract  to  transport  goods,  upon  a  mere  question  of  market 
value,  but  upon  the  fluctuations  of  travel  and  of  trade,  and  many 
other  contingencies.  The  citation  by  Judge  Cowen,  of  the  mari- 
time cases  to  which  I  have  referred,  tends  to  confirm  this  view. 
This  case,  therefore,  is  a  direct  authority  in  support  of  the 
doctrine  that  whenever  the  profits  claimed  depend  upon  con- 
tingencies of  the  character  referred  to,  they  are  not  recoverable. 

The  case  of  Masterton  v.  The  Mayor,  &c.,  of  Brooklyn,  7 
Hill,  61,  decides  nothing  in  opposition  to  this  doctrine.  It 
simply  goes  to  support  the  other  branch  of  the  rule,  viz.,  that 
profits  are  allowed  where  they  do  not  depend  upon  the  chances 
of  trade,  but  upon  the  market  value  of  goods,  the  price  of  labor, 
the  cost  of  transportation,  and  other  questions  of  the  like  nature, 
which  can  be  rendered  reasonably  certain  by  evidence. 

From  these  authorities  and  principles  it  is  clear  that  the  de- 
fendants were  not  entitled  to  measure  their  damages  by  esti- 
mating what  they  might  have  earned  by  the  use  of  the  engine  and 
their  other  machinery  had  the  contract  been  complied  with. 
Nearly  every  element  entering  into  such  a  computation  would 
have  been  of  that  uncertain  character  which  has  uniformly  pre- 
vented a  recovery  for  speculative  profits. 

But  it  by  no  means  follows  that  no  allowance  could  be  made 
to  the  defendants  for  the  loss  of  the  use  of  their  machinery.  It 
is  an  error  to  suppose  that  "the  law  does  not  aim  at  complete 
compensation  for  the  injury  sustained,"  but  "seeks  rather  to 
divide  than  satisfy  the  loss."  (Sedg.  on  Dam.,  ch.  3.)  The 
broad,  general  rule  in  such  cases  is,  that  the  party  injured  is 
entitled  to  recover  all  his  damages,  including  gains  prevented  as 
well  as  losses  sustained ;  and  this  rule  is  subject  to  but  two  con- 
ditions :  The  damages  must  be  such  as  may  fairly  be  supposed 
to  have  entered  into  the  contemplation  of  the  parties  when  they 
made  the  contract,  that  is,  must  be  such  as  might  naturally  be 
expected  to  follow  its  violation ;  and  they  must  be  certain ;  both 


COMPENSATORY    DAMAGES.  77 

in  their  nature  and  in  respect  to  the  cause  from  which  they 
proceed. 

The  familiar  rules  on  the  subject  are  all  subordinate  to  tliese. 
For  instance:  That  the  damages  must  flow  directly  and  nat- 
urally from  the  breach  of  contract,  is  a  mere  mode  of  expressing 
the  first;  and  that  they  must  be  not  the  remote  but  proximate 
consequence  of  such  breach,  and  must  not  be  speculative  or  con- 
:tingent,  are  different  modifications  of  the  last. 

These  two  conditions  are  entirely  separate  and  independent, 
and  to  blend  them  tends  to  confusion ;  thus  the  damages  clainieci 
may  be  the  ordinary  and  natural,  and  even  necessary  result  of 
the  breach,  and  yet,  if  in  their  nature  uncertain,  they  must  be  re- 
jected; as  in  the  case  of  Blanchard  v.  Ely,  where  the  loss  of  the 
trips  was  the  direct  and  necessary  consequence  of  the  plaintiff's 
failure  to  perform.  So  they  may  be  definite  and  certain,  and 
clearly  consequent  upon  the  breach  of  contract,  and  yet  if  such 
as  would  not  naturally  flow  from  such  breach,  but,  for  some 
special  circumstances,  collateral  to  the  contract  itself  or  foreign 
to  its  apparent  object,  they  cannot  be  recovered ;  as  in  the  case 
of  the  loss  by  the  clergyman  of  his  tithes  by  reason  of  the  failure 
to  deliver  the  horse. 

Cases  not  unfrequently  occur  in  which  both  these  conditions 
are  fulfilled :  where  it  is  certain  that  some  loss  has  been  sustained 
or  damage  incurred,  and  that  such  loss  or  damage  is  the  direct, 
immediate  and  natural  consequence  of  the  breach  of  contract,  but 
where  the  amount  of  the  damages  may  be  estimated  in  a  variety 
of  ways.  In  all  such  cases  the  law,  in  strict  conformity  to  the 
principles  already  advanced,  uniformly  adopts  that  mode  of 
estimating  the  damages  which  is  most  definite  and  certain.  The 
case  of  Freeman  v.  Clute,  3  Barb.  S.  C.  R.,  424,  is  a  case  of  this 
class,  and  affords  an  apt  illustration  of  the  rule.  That  case  was 
identical  in  many  of  its  features  with  the  present.  The  contract 
there  was  to  construct  a  steam  engine  to  be  used  in  the  process 
of  manufacturing  oil,  and  damages  Avere  claimed  for  delay  in 
furnishing  it.  It  was  insisted  in  that  case,  as  in  this,  that  the 
damages  were  to  be  estimated  by  ascertaining  the  amount  of 
business  which  could  have  been  done  by  the  use  of  the  engine, 
and  the  profits  that  would  have  thence  accrued.  This  claim  was 
rejected  by  Mr.  Justice  Harris,  before  whom  the  cause  was  tried, 
and  upon  the  precise  ground  taken  here.  But  he  nevertheless 
held  that  compensation  was  to  be  allowed  for  the  "loss  of  the 


78  CLASSIFICATION  OF  DAMAGES. 

plaintiff's  mill  and  other  machinery."  He  did  not,  it  is  true, 
specify  in  terms  tlie  mode  in  which  the  value  of  such  use  was  to  be 
estimated ;  but  as  he  had  previously  rejected  the  probable  profits 
of  the  business  as  the  measure  of  such  value,  no  other  appropriate 
data  would  seem  to  have  remained  but  the  fair  rent  or  hire  of 
the  mill  and  machinery;  and  such  I  have  no  doubt  was  the 
meaning  of  the  judge.  Thus  imderstood,  the  decision  in  that 
case,  and  the  reasoning  upon  which  it  was  based,  were  I  think 
entirely  accurate. 

Had  the  defendants  in  the  case  of  Blanchard  v.  Ely,  supra, 
taken  the  ground  that  they  were  entitled  to  recoup,  not  the  un- 
certain and  contingent  profits  of  the  trips  lost,  but  such  sum  as 
they  could  have  realized  by  chartering  the  boat  for  those  trips, 
I  think  their  claim  must  have  been  sustained.  The  loss  of  the 
trips,  which  had  certainly  occurred,  was  not  only  the  direct  but 
tlie  immediate  and  necessary  result  of  the  breach  of  the  plain- 
tiffs' contract. 

The  rent  of  a  mill  or  other  similar  property,  the  price  which 
should  be  paid  for  the  charter  of  a  steamboat,  or  the  use  of  ma- 
chinery, &c.,  &c.,  are  not  only  susceptible  of  more  exact  and 
definite  proof,  but  in  a  majority  of  cases  would,  I  think,  be 
found  to  be  a  more  accurate  measure  of  the  damages  actually 
sustained  in  the  class  of  cases  referred  to,  considering  the  con- 
tingencies and  hazards  attending  the  prosecution  of  most  kinds 
of  business,  than  any  estimate  of  anticipated  profits ;  just  as  the 
ordinary  rate  of  interest  is  upon  the  whole  a  more  accurate 
measure  of  the  damages  sustained  in  consequence  of  the  non-pay- 
ment of  a  debt  than  any  speculative  profit  which  the  creditor 
might  expect  to  realize  from  the  use  of  the  money.  It  is  no  an- 
swer to  this  to  say  that,  in  estimating  what  would  be  the  fair 
rent  of  a  mill,  we  must  take  into  consideration  all  the  risks  of  the 
business  in  which  it  is  to  be  used.  Kents  are  graduated  according 
to  the  value  of  the  property  and  to  an  average  of  profits  arrived 
at  by  very  extended  observation ;  and  so  accurate  are  the  results 
of  experience  in  this  respect  that  rents  are  rendered  nearly  if  not 
quite  as  certain  as  the  market  value  of  commodities  at  a  partic- 
ular time  and  place. 

The  proper  rule  for  estimating  this  portion  of  the  damages  in 
the  present  case  was,  to  ascertain  what  would  have  been  a  fair 
price  to  pay  for  the  use  of  the  engine  and  machinery,  in  view  of 
all  the  hazards  and  chances  of  the  business ;  and  this  is  the  rule 


COMPENSATORY   DAMAGES.  79 

which  I  understand  the  referee  to  have  adopted.  There  is  no 
error  in  the  other  allowances  made  by  the  referee.  The  judg- 
ment should  therefore  be  affirmed. 


BRIGHAM  V.  CARLISLE. 

Alabama,  1884.     78  Ala.  243. 

Clopton,  J.  *  *  *  The  material  question  is  the  measure 
of  damages.  The  primary  purpose  of  awarding  damages  is 
actual  compensation  to  the  party  injured,  whether  by  a  tort 
or  by  breach  of  contract,  though  there  are  exceptional  cases, 
in  which  exemplary  or  punitive  damages  are  allowed.  Owing 
to  the  ever-occurring  differences  in  the  circumstances  and  in 
the  special  conditions  of  the  contracting  parties,  it  has  been 
found  difficult,  if  not  impossible,  to  lay  down  general  and  defi- 
nite rules  as  to  the  measure  of  damages,  applicable  to  all  cases 
of  a  class.  From  a  misconstruction  of  expressions  of  eminent 
jurists,  not  sufficiently  guarded  for  general  use,  but  adapted 
to  the  case  in  hand,  the  applications  of  rules,  commonly  recog- 
nized, have  been  as  various  as  the  cases.  The  proposition,  that 
all  damages  are  recoverable  which  are  in  the  contemplation  of 
the  parties,  is  not  strictly  correct.  The  primary  rules  are,  the 
damages  must  be  the  natural  and  proximate  results  of  the  wrong 
complained  of  and  the  law  must  not  be  merely  speculative,  or 
conjectural.  These  must  concur,  though  founded  on  different 
principles,  and  are  distinct  and  independent  of  each  other. 
The  law  presumes  that  a  party  foresees  the  natural  and  proxi- 
mate results  of  a  breach  of  his  contract  or  tort,  and  hence  these 
are  presumed  to  be  in  his  legal  contemplation.  For  such  dam- 
ages, as  a  general  rule,  the  party  at  fault  is  liable. 

But  there  are  damages,  which  are  in  the  contemplation  of 
the  parties  at  the  time  of  making  the  contract,  and  are  the 
natural  and  proximate  results  of  its  breach,  which  are  not  re- 
coverable. The  parties  must  necessarily  contemplate  the  loss 
of  profits  as  the  direct  and  necessary  consequences  of  the  breach 
of  a  contract,  and  yet  all  profits  are  not  within  the  scope  of  re- 
coverable damages.  There  are  numerous  cases,  however,  in 
which  profits  constitute,  not  only  an  element,  but  the  measure 
of  damage.  While  the  line  of  demarcation  is  often  dim  and 
shadowy,  the  distinctive  features  consist  in  the  nature  and  char- 
acter of  the  profits.     "When  they  form  an  elemental  constituent 


so  CLASSIFICATION  OF  DAMAGES. 

of  the  contract,  their  loss,  the  natural  result  of  its  breach,  and 
the  amount  can  be  estimated  with  reasonable  certainty,  such  cer- 
tainty as  satisfies  the  mind  of  a  prudent  and  impartial  person, 
they  are  allowed.  The  requisite  to  their  allowance  is  some  stand- 
ard, as  regular  market  values  or  other  established  data,  by  ref- 
erence to  which  the  amount  may  be  satisfactorily  ascertained. 
Illustrations  of  profits  recoverable  are  found  in  cases  of  sales 
of  personal  property  at  a  fixed  price,  evictions  of  tenants  by 
landlords,  articles  of  partnership,  and  many  commercial  con- 
tracts. 

On  the  other  hand,  "mere  speculative  profits,  such  as  might 
be  conjectured  would  be  the  probable  result  of  an  adventure, 
defeated  by  the  breach  of  a  contract,  the  gains  from  which  are 
entirely'  conjectural,  and  with  respect  to  which  no  means  exist 
of  ascertaining  even  approximately  the  probable  results,  cannot 
under  any  circumstances  be  brought  within  the  range  of  recov- 
erable damages."  1  Suth.  Dam.  141.  Profits  speculative,  con- 
jectural, or  remote,  are  not  generally  regarded  as  an  element  in 
estimating  the  damages.  In  Pollock  v.  Gantt,  69  Ala.  373 ;  s.  c, 
44  Am.  Rep.  519,  it  is  said:  "What  are  termed  speculative 
damages — that  is  possible,  or  even  probable  gains,  that  it  is 
claimed  would  have  been  realized,  but  for  the  tortious  act  or 
breach  of  contract  charged  against  a  defendant — are  too  remote, 
and  cannot  be  recovered."  The  same  rule  has  been  repeatedly 
asserted  by  this  court.  Culver  v.  Hill,  68  Ala.  66 ;  Iliggins  v. 
:\tanslield,  62  Ala.  267;  Burton  v.  Holley,  29  Ala.  318;  s.  c, 
65  Am.  Dec.  401 ;  White  v.  Miller,  71  N.  Y.  118 ;  s.  c.  27  Am. 
Rep.  13;  French  v.  Ramge,  2  Neb.  254;  2  Smith  Lead.  Cases, 
574;  Olmstead  v.  Burke,  25  111.  86.  The  two  following  cases  may 
serve  to  illustrate  the  difference  between  profits  recoverable  and 
not  recoverable.  In  Aetna  Life  Ins.  Co.  v.  Nexsen,  84  Ind.  347 ; 
s.  c,  43  Am.  Rep.  91,  an  insurance  agent  who  had  been  dis- 
charged without  cau>se  before  the  expiration  of  his  contract,  was 
allowed  to  include  in  his  recovery  the  probable  value  of  renewals 
on  policies  previously  obtained  by  him,  upon  which  future  pre- 
miums would,  in  the  usual  course  of  business,  be  received  by  the 
company,  on  the  ground  that  the  amount  of  compensation,  due 
on  such  reneAvals,  can  be  ascertained  with  requisite  certainty 
by  the  use  of  actuary's  life-tables  and  comparisons,  and  that 
the  basis  of  the  right  to  damages  existed  and  was  not  to  be  built 
in  the  future.     In  Lewas  v.  Atlas  Mut.  Ins.  Co.,  61  Mo.  534, 


COMPENSATORY   DAMAGES.  81 

which  is  cited  with  approval  in  the  other  case,  the  same  rule  as 
to  the  probable  value  of  renewals  was  held,  but  it  was  also  held, 
that  an  estimate  of  the  probable  earnings  of  the  agent  there- 
after, derived  from  proof  of  the  amount  of  his  collections  and 
commissions  before  the  breach  of  the  contract,  in  the  absence 
of  other  proof,  is  too  speculative  to  be  admissible. 

Profits  are  not  excluded  from  recovery,  because  they  are 
profits;  but  when  excluded,  it  is  on  the  ground  that  there  are 
no  criteria  b}^  which  to  estimate  the  amount  with  the  certainty 
on  which  the  adjudications  of  courts,  and  the  findings  of  juries 
should  be  based.  The  amount  is  not  susceptible  of  proof.  In 
3  Suth.  Dam.  157,  the  author  discriminatingly  observes:  "When 
it  is  advisedly  said  that  profits  are  uncertain  and  speculative, 
and  cannot  be  recovered,  when  there  is  an  alleged  loss  of  them, 
it  is  not  meant  that  profits  are  not  recoverable  merely  because 
they  are  such,  nor  because  profits  are  necessarily  speculative, 
contingent  and  too  uncertain  to  be  proved ;  but  they  are  rejected 
when  they  are  so ;  and  it  is  probable  that  the  inquiry  for  them 
has  been  generally  proposed  when  it  must  end  in  fruitless  un- 
certainty ;  and  therefore  it  is  more  a  general  truth  than  a  general 
principle,  that  a  loss  of  profits  is  no  ground  on  which  damages 
can  be  given."  When  not  allowed  because  speculative,  con- 
tingent, and  uncertain,  their  exclusion  is  founded  by  some  on 
the  ground  of  remoteness,  and  by  others,  on  the  presumption 
that  they  are  not  in  the  legal  contemplation  of  the  parties. 

The  plaintiff,  by  the  contract,  undertook  the  busin&ss  of  trav- 
eling salesman  for  the  defendants.  The  amount  of  his  cormnis- 
sions  depended  not  merely  on  the  number  and  amounts  of  sales 
he  might  make,  but  also  on  the  proportional  quantity  of  the 
two  classes  of  goods  sold,  his  commissions  being  different  on  each. 
The  number  and  amounts  of  sales  depended  on  many  contin- 
gencies, the  state  of  trade,  the  demand  for  such  goods,  their  suit- 
ableness to  the  different  markets,  the  fluctuations  of  business, 
the  skill,  energy,  and  industry  with  which  he  prosecuted  the 
business,  the  time  employed  in  effecting  different  sales,  and  upon 
the  acceptance  of  sales  by  the  defendants.  There  are  no  criteria, 
no  established  cZofa,  by  reference  to  which  the  profits  are  capable 
of  any  estimate.  They  are  purely  speculative  and  conjectural. 
Besides,  the  evidence  is  the  mere  opinion  and  conjecture  of  the 
plaintiff  without  giving  any  facts  on  which  it  was  based.  The 
bare  statement,  uncorroborated  by  any  facts,  and  without  a  basis. 


82  CLASSIFICATION  OF  DAMAGES. 

that  "the  reasonable  sales  would  have  been  $15,000,  and  that 
the  net  profits  on  that  amount  of  sales  would  have  been  $-t50," 
is  too  conjectural  to  be  admissible.  Washburn  v.  Hubbard,  6 
Lans.  11. 

Reversed  and  remanded. 


WRIGHT   V.  MULVANEY. 

Wisconsin,  1890.     78  Wis.  89. 

The  plaintiffs  were  fishermen  in  Green  Bay,  and  had  what  is 
called  a  pound  or  a  pot  net  set  near  the  direct  route  from  the 
mouth  of  Oconto  river  to  Peshtigo  Harbor.  The  defendant  neg- 
ligently ran  into  the  net  with  a  steam  tug  and  injured  it  while 
en  route  toward  Peshtigo  Harbor.  The  plaintiff  recovered  a 
judgment  for  $310.  Defendant  appeals. 
'  Lyon,  j,  *  *  *  There  is,  included  in  the  judgment,  $200 
for  damages  to  the  plaintiffs'  business  resulting  from  the  in- 
jury to  their  net — that  is  to  say,  for  loss  of  the  profits  of  their 
business  during  the  time  necessarily  required  to  restore  the  net. 
The  net  was  never  restored,  and  the  plaintiffs'  fishing  in  that 
vicinity  for  the  remainder  of  the  season  was  all  done  with  another 
net  located  about  one-half  mile  south  of  the  injured  net.  The 
testimony  tends  to  show  that  the  plaintiffs  lifted  the  pot  of  their 
net  and  took  the  fish  therefrom  about  every  alternate  day  be- 
fore the  injury;  that  the  profits  of  each  lift  were  from  $40  to 
$50;  and  that  it  would  have  required  about  10  days  to  restore 
the  injured  net,  had  it  been  restored.  There  was  no  other  testi- 
mony introduced  bearing  upon  the  question  of  profits.  Hence, 
the  jury  necessarily  assessed  the  damages  to  plaintiffs'  business 
on  the  basis  of  four  or  five  lifts  of  fish,  at  a  profit  of  from  $40 
to  $50  each. 

There  was  no  testimony  as  to  whether  the  conditions  of  suc- 
cessful fishing  remained  for  10  days  after  the  injury  as  favor- 
able as  they  were  immediately  before  the  same, — ^none  to  show 
that  the  weather  continued  favorable  during  the  10  days;  that 
storms  did  not  intervene  to  interrupt  the  business ;  that  the  fish 
continued  to  run  over  the  same  ground  in  equal  abundance ;  that 
other  fishermen  operating  in  the  vicinity  were  equally  as  suc- 
cessful in  their  business  after  as  before  the  injury;  nor  that  the 
market  price  of  fish  remained  as  high.  Without  any  testimony 
concerning  these  essential  conditions,  the  jury  must  have  made 


COMPENSATORY    DAMAGES.  83 

their  assessment  of  damages  to  plaintiflfs'  business  largely  upon 
mere  conjecture.  They  must  have  assumed  without  proof  that 
a  business  proverbially  uncertain  in  results,  depending  for  its 
success  upon  numerous  conditions  which  the  persons  engaged 
therein  cannot  control  or  influence,  and  the  presence  or  absence 
of  which  at  a  future  time  cannot  be  foretold  with  any  degree  of 
accuracy,  would  have  continued  after  the  net  was  injured  to  be 
just  as  profitable  as  it  was  before  the  injury.  Such  an  assump- 
tion, under  such  circumstances,  is  unwarranted  in  the  law,  and 
probably  we  should  be  compelled  to  reverse  this  judgment  for 
want  of  sufficient  evidence  to  support  the  assessment  of  dam- 
ages for  profits,  even  though  it  should  be  held  that,  under  proper 
proofs,  the  plaintiffs  might  recover  prospective  profits. 

But  we  are  of  the  opinion  that  prospective  profits  cannot  prop- 
erly be  awarded  as  damages  in  this  case.  The  reasons  therefor 
has  already  been  suggested,  which  is  that  under  any  state  of  the 
testimony,  in  view  of  the  character  and  conditions  of  the  business, 
the  jury  could  have  no  sufficient  basis  for  ascertaining  such  pros- 
pective profits.  At  best,  the  assessment  thereof  must  necessarily 
rest  largely  upon  conjecture.  This  feature  of  the  case  brings  it 
within  the  rule  of  Bierbach  v.  Rubber  Co.,  54  Wis.  208,  and 
Anderson  v.  Sloane,  72  Wis.  566,  and  the  cases  cited  in  the  opin- 
ions therein.  In  the  latter  case,  Mr.  Justice  Tajdor  has  pointed 
out  the  distinction  between  that  case  and  those  cases  in  this 
court  in  which  prospective  profits  have  been  allowed  as  dam- 
ages. It  is  unnecessary  to  repeat  the  discussion  here.  It  is  some- 
times quite  difficult  to  determine  to  which  of  the  above  classes 
a  given  case  belongs,  and  such  determination  must  be  gov- 
erned largely  by  the  special  circumstances  of  each  particular 
case. 

The  jury  assessed  the  damages  to  the  net  at  $110.  This  in- 
cludes not  only  the  cost  of  repairing  it,  but  also  the  value  of  the 
services  of  the  plaintiffs  and  their  servants  in  resetting  it.  We 
conclude  that  the  plaintiffs  are  entitled  to  recover  no  other  dam- 
ages, except  the  value  of  the  use  of  the  net  during  the  time  they 
were  necessarily  deprived  of  its  use,  which  was  about  10  days. 

By  the  Court.  The  judgment  of  the  Circuit  Court  is  re- 
versed, and  the  cause  will  he  remanded  with  directions  to  award 
a  new  trial,  or,  at  the  option  of  the  plaintiffs,  to  give  judgment 
for  them  for  $110  and  interest  thereon  from  the  date  of  the 
verdict,  besides  costs. 


8-i  CLASSIFICATION  OF  DAMAGES. 

BETHEL  &  CO.  r.  SALEM  LMPROVEMENT  CO. 
Virginia.  1896.     03  Va.  354. 

The  defendant  company  agreed  by  contract  under  seal  to 
purchase  of  plaintitV  1,5(.»U,0U0  bricks,  to  be  burned  for  it  by 
plaintiff.  After  plaintiff  had  manufactured  803,491  bricks  the 
defendant  notified  the  plaintiff"  that  it  would  not  receive  any 
more.  It  did  not  pay  for  those  already  manufactured,  except- 
ing the  sum  of  $3,212.31.  Plaintiff'  seeks  to  recover  a  profit, 
which  he  alleges  would  have  been  made,  of  $3  per  thousand  on 
the  bricks  imburned,  and  also  to  recover  the  balance  due  on  the 
purchase  price  of  those  completed.  A  verdict  of  $1,403.04  for 
plaintiff  was  set  aside  by  the  lower  court,  and  the  plaintiff  com- 
plains thereof.  The  ground  for  such  action  was  the  giving  of 
an  instruction  authorizing  the  recovery  ofthe  profits  claimed. 

Keith,  President.  *  *  *  The  failure  to  pay  the  money 
is  the  cause  alleged  in  the  instruction,  that  forced  the  plaintiffs 
to  stop  the  manufacture  of  the  bricks,  and  which  entitles  the 
plaintiffs  to  recover,  not  only  for  the  bricks  manufactured  by 
them  according  to  said  contract,  but  for  the  profit  on  the  differ- 
ence between  the  number  of  the  bricks  so  manufactured  by  them, 
and  the  1,500,000  bricks  manufactured  according  to  the  terms 
of  the  contract,  to  be  ascertained  by  placing  the  bricks  at  the 
price  fixed  in  the  contract,  and  deducting  therefrom  the  cost 
of  the  bricks  as  shown  by  the  evidence. 

For  the  breach  of  contract  to  pay  money,  no  matter  what  the 
amount  of  inconvenience  sustained  by  the  plaintiff,  the  measure 
of  damages  is  the  interest  of  the  money  only.  Wood's  Mayne, 
Dam.   (1st  Am.  Ed.)  p.  15.     (Citing  authorities.)     *     *     * 

Many  instances  of  a  like  character  might  be  given,  but  we 
have  seen  no  case  which  will  sustain  the  instruction  under  con- 
sideration. It  is  the  ordinary  case  of  a  failure  to  comply  with  a 
contract  to  pay  money  at  a  stipulated  time.  In  such  cases  the 
measure  of  damages  for  the  breach  of  the  contract  is  the  prin- 
cipal sum  due,  and  legal  interest  thereon.  To  make  a  defend- 
ant responsible  for  the  profits  which  might  have  accrued  to  the 
plaintiff  by  the  use  of  the  money  in  addition  to  the  interest  would 
be  harsh  and  oppressive,  and  should  not  be  sanctioned  by  the 
court,  unless  the  plaintiff  can  bring  his  case  within  some  well- 
recognized  exception  to  the  rule.    *     *    * 

Ajfirmed. 


COMPENSATORY   DAMAGES.  85 

STEVENS  V.  YALE. 

Michigan,  1897.     113  Mich.  680. 

The  plaintiffs,  druggists,  purchased  of  defendant  an  order 
of  toilet  preparations,  "beautifiers  for  women,"  and  defendant 
agreed  to  print  plaintiffs'  names  at  the  bottom  of  all  defendant's 
adv^ertisements  in  the  Detroit  newspapers  as  carrying  defend- 
ant's preparations  for  sale.  After  eight  months  defendant 
ceased  to  so  print  plaintiffs'  names,  and  inserted  instead  that 
of  another  house  as  wholesale  agents  in  Detroit.  Action  to  re- 
cover damages  for  failure  so  to  print  plaintiffs'  names.  Verdict 
directed  for  defendant,  the  judge  holding  that  there  was  a  want 
of  mutuality  in  the  contract;  and  second,  that  all  damages,  at- 
tempted to  be  showTi,  were  speculative 

Hooker,  j.  *  *  *  ^e  need  not  discuss  the  question  of 
the  validity  of  this  contract.  If  it  be  treated  as  valid,  and  it  be 
admitted  that  there  was  a  breach  of  the  contract  by  the  defend- 
ant, the  damages  sought  to  be  recovered  were  speculative.  The 
injury  suffered,  if  any,  was  a  loss  of  such  profits  as  would  have 
resulted  from  advertising, — a  matter  of  mere  conjecture,  de- 
pending upon  the  number  who  might  read  and  act  upon  the  ad- 
vertisement. [Citing  authorities.]  We  have  held  in  several 
cases  that  loss  of  profits  may  be  recovered  where  the  loss  of 
profits  and  their  amount  can  be  shown  with  certainty.  But  here 
the  effect  of  this  failure  to  advertise  is  most  uncertain,  and  the 
circuit  court  was  correct  in  holding  that  such  damages  were  not 
recoverable. 

Counsel  for  the  defendant  urge  that  a  new  trial  should  be 
granted  because  the  plaintiff  was  entitled  to  nominal  damages. 
This  action  was  commenced  in  circuit  court,  and  under  the  stat- 
ute the  plaintiff  would  not  be  entitled  to  costs  upon  a  judgment 
for  nominal  damages,  and  the  judgment  should  not  be  reversed 
upon  this  ground.  Hickey  v.  Baird,  9  Mich.  38 ;  Haven  v.  Manu- 
facturing Co.,  40  Mich.  290. 

The  judgment  is  affirmed. 
The  other  Justices  concurred. 


86  CLASSIFICATION  OF  DAMAGES. 

WEIR  V.  UNION  RAILWAY  CO. 

New  York,  1907.     188  N.  Y.  416. 

Chase,  J.  The  plaintiff  recovered  judgment  in  this  action 
against  the  defendant  for  personal  injuries  resulting  from  the 
fall  of  a  fare  indicator  or  register  in  one  of  defendant's  street 
cars  on  which  the  plaintiff  was  a  passenger.  An  appeal  was 
taken  from  said  judgment  to  the  Appellate  Division  of  the  Su- 
preme Court,  where  it  was  unanimously  affirmed.  The  appeal 
is  taken  to  this  court  pursuant  to  an  order  of  the  said  Appellate 
Division  allowing  the  same,  and  in  which  order  it  is  certified  that, 
in  the  opinion  of  the  court,  a  question  of  law  is  involved  which 
ought  to  be  reviewed  by  this  court.  The  only  question  of  law 
involved  arises  upon  rulings  of  the  trial  court  upon  objections 
to  questions  involving  the  profits  of  the  business  conducted  by 
the  plaintiff. 

The  plaintiff,  who  is  usually  employed  as  a  boatman,  had  for 
six  or  seven  months  prior  to  the  accident  rented  a  room  which 
immediately  adjoined  the  street  along  the  side  of  a  liquor  store. 
In  the  room,  the  dimensions  of  which  were  5  by  16  feet,  he  con- 
ducted a  lunch  business  and  sold  oysters,  clams,  crabs,  lobsters, 
beef  stew,  and  fish.  There  were  sittings  in  the  room  for  six  or 
eight  people,  and  the  food  was  eaten  by  purchasers  at  the  plaint- 
iff's place  of  business.  During  some  portion  of  the  time  that 
he  was  conducting  such  business  he  employed  therein  two  or 
three  men,  and  at  the  time  of  the  accident  he  was  employing  one 
man.  Oysters  and  clams  were  opened  as  ordered,  and  they  were 
the  principal  articles  of  food  sold,  and  the  plaintiff  purchased 
them  by  the  barrel.  The  supplies  purchased  by  the  plaintiff 
varied  in  price  and  the  amounts  sold  varied  to  such  an  extent 
that  the  number  of  persons  employed  had  to  be  changed  from 
time  to  time.  It  does  not  appear  that  it  required  any  particular 
skill  or  ability  to  do  the  work  of  managing  the  business  that  the 
plaintiff  was  conducting,  or  that  the  plaintiff  had  any  particular 
skill  or  ability  in  opening  oysters  or  clams  or  in  serving  food 
to  others.  The  trial  court  allowed  the  plaintiff  to  testify  that 
he  was  doing  a  business  of  about  $120  and  sometimes  $140  a 
week,  and  that  his  expenses  each  week  for  help  were  $10  or  $12, 
and  for  stock  $40,  and  that  his  rent  was  $10  a  month,  and  that 
the  remainder  of  the  proceeds  of  his  business  was  profit.  This 
testimony  was  given  subject  to  objections  on  the  part  of  the  de- 


COMPENSATORY   DAMAGES.  87 

fendant  that  it  was  incompetent,  immaterial  and  irrelevant,  and 
as  calling  for  special  damages  not  pleaded  by  the  plaintiff,  and 
that  it  related  to  a  business  in  which  the  plaintiff  had  capital 
invested.  The  objections  of  the  defendant  were  overruled,  and 
the  defendant  excepted  to  the  ruling  of  the  court. 

Where  a  person  by  reason  of  personal  injuries  has  been  pre- 
vented from  performing  the  work  or  services  in  which  he  was 
engaged  at  the  time  of  the  injury,  the  loss  of  time  occasioned 
thereby  and  also  any  loss  or  diminution  of  future  earning  power 
are  elements  of  damage  to  be  considered  by  a  jury.  A  loss  of 
income  can  be  shown  and  considered  when  such  income  is  de- 
rived from  personal  effort  or  particular  skill  and  ability  as  dis- 
tinguished from  the  profits  of  a  business  in  which  capital  is  in- 
vested and  which  is  dependent  upon  the  continuance  of  the  busi- 
ness as  well  as  the  capital,  but  mere  profits  of  a  business  as  such 
cannot  be  considered  in  measuring  the  damages  arising  from 
such  loss  of  time  or  diminution  of  earning  power.  In  this  case 
the  business  did  not  require  a  large  capital  or  many  employees, 
but  the  questions  expressly  called  for  the  profits  of  a  business, 
and  not  for  the  value  of  plaintiff's  personal  services  in  connec- 
tion therewith.  This  is  apparent  from  all  the  testimony  in  the 
case,  and  it  is  particularly  shown  from  the  fact  that  it  had  been 
the  practice  of  the  plaintiff  to  leave  the  business  with  his  em- 
ployees when  he  was  absent,  and  from  the  further  fact  that  the 
business  was  continued  for  several  weeks  after  the  accident, 
although  the  plaintiff  was  not  personally  present.  At  the  time 
when  the  plaintiff,  as  he  says,  wound  up  the  business  he  had 
sufficiently  recovered,  so  that  he  went  to  the  office  of  his  physi- 
cian frequently  for  treatment,  and  it  does  not  appear  that  the 
plaintiff  could  not  have  continued  the  business  by  the  employ- 
ment of  help  until  he  had  fully  recovered,  or  imtil  he  could  have 
attended  at  the  place  of  business  to  supervise  the  same.  The 
testimony  should  have  been  confined  to  the  value  of  the  plaint- 
iff's individual  services  during  the  time  he  was  unable  by  reason 
of  his  personal  injuries,  to  perform  the  same. 

Tn  Masterton  v.  Village  of  Mt.  Vernon,  58  N.  Y.  391,  396,  the 
court,  referring  to  cases  therein  mentioned,  says:  "In  none 
of  these  cases  is  any  intimation  given  that  proof  may  be  given 
as  to  the  uncertain  future  profits  of  commercial  business,  or  that 
the  amount  of  past  profits  derived  therefrom  may  be  shown,  to 
enable  the  jury  to  conjecture  what  the  future  might  probably 


88  CLASSIFICxVTION  OF  DAMAGES. 

bo.  These  profits  depend  upon  too  many  contingencies,  and  are 
altogether  too  uncertain  to  furnish  any  safe  guide  in  fixing  the 
amount  of  damages."  In  referring  to  the  case  of  Walker  v. 
Erie  R.  R.  Co.,  63  Barb.  260,  in  which  it  was  held  that  proof 
of  the  amount  of  the  income  derived  by  the  plaintiff  in  that 
action  in  the  practice  of  his  profession  as  a  lawyer  was  com- 
petent, the  court  say:  "This  goes  beyond  the  rule  adopted 
in  any  of  the  other  cases,  and  it  certainly  ought  not  to  be  further 
extended."  The  court  further  say:  "The  profits  of  import- 
ing and  selling  teas  are  still  more  uncertain.  In  some  years  they 
may  be  large,  and  in  others  attended  with  loss.  The  plaintiff 
had  the  right  to  prove  the  business  in  which  he  was  engaged, 
its  extent,  and  the  particular  part  transacted  by  him,  and,  if 
he  could,  the  compensation  usually  paid  to  persons  doing  such 
business  for  others.  These  are  circumstances  the  jury  have  a 
right  to  consider  in  fixing  the  value  of  his  time." 

In  this  case  the  profits  of  the  business  were  subject  to  many 
uncertainties  and  contingencies,  among  which  were  his  ability 
to  continue  the  business  in  the  place  and  as  theretofore  con- 
ducted, the  amount  of  competition  that  he  might  at  any  time 
encounter,  and  the  variation  in  the  price  of  supplies  to  be  pur- 
chased. The  respondent  refers  to  the  recent  case  of  Kronold  v. 
City  of  New  York,  186  N.  Y.,  40,  as  sustaining  his  contention.  In 
that  case,  although  the  plaintiff  maintained  an  office  and  had 
invested  about  $1,000  of  capital,  nevertheless  his  income  was  de- 
rived from  the  sale  of  Swiss  embroideries.  The  embroideries 
were  sold  from  designs  or  drawings  sho\^Ti  from  sample  em- 
broideries, and  the  orders  were  procured  by  the  plaintiff  as  a 
canvasser  and  by  his  personal  solicitation.  In  that  case,  after 
reviewing  the  authorities,  it  was  held  in  substance  that  where 
the  facts  disclose  such  a  preponderance  of  the  business  element 
over  the  personal  equation,  or  such  an  admixture  of  the  two, 
that  the  question  of  personal  earnings  could  not  be  safely  or 
properly  segregated  from  returns  upon  capital  invested,  the  in- 
come or  profits  from  a  business  should  not  be  considered  in  de- 
termining the  amount  of  the  damages  to  which  the  plaintiff  is 
entitled. 

The  question  of  personal  earnings  is  too  much  involved  in 
this  case  with  the  ordinary  chances  of  a  business  venture  to  allow 
the  profit  on  the  plaintiff's  business  to  be  considered  in  determin- 
ing what  damages  the  defendant  should  pay  to  the  plaintiff. 


COMPENSATORY   DAMAGES.  89 

The  judgment  should  be  reversed  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 


(5)     Expenses. 


ELLIS  V.  HILTON. 

Michigan,  1S89.    78  Mich.  150. 

Long,  J.  This  is  an  action  to  recover  damages  against  the 
defendant  for  negligently  placing  a  stake  in  a  public  street  in 
Traverse  City,  which  plaintiff's  horse  ran  against,  and  was  in- 
jured. 

It  was  conceded  on  the  trial  by  counsel  for  defendant  that 
the  horse  of  plaintiff  was  so  injured  that  it  was  entirely  worth- 
less. Plaintiff  claimed  damages,  not  only  for  the  full  value 
of  the  horse,  but  also  for  what  he  expended  in  attempting  to 
effect  a  cure,  and  on  the  trial  stated  to  the  court  that  plaintiff' 
was  entitled  to  recover  a  reasonable  expense  in  trying  to  cure  the 
horse  before  it  was  decided  that  she  was  actually  worthless. 
The  court  ruled,  however,  that  the  damages  could  not  exceed  the 
value  of  the  animal. 

A  claim  is  made  by  the  declaration  for  moneys  expended  in 
trying  to  effect  a  cure  of  the  horse  after  the  injury-.  Upon  the 
trial  the  plaintiff  testified  that  he  put  the  horse,  after  the  injury, 
into  the  hands  of  a  veterinary,  and  paid  him  $35  for  cure  and 
treatment.  On  his  cross-examination,  he  also  testified  that  the 
veterinary  said  "there  was  hopes  of  curing  her,  if  the  muscles 
were  not  too  badly  bruised.  He  didn't  say  he  could  cure  her. 
He  thought  there  was  a  chance  he  might." 

Dr.  DeCow,  the  veterinary,  was  called,  and  testified,  as  to  the 
injury,  that  the  stake  entered  the  breast  of  the  horse,  on  the 
left  side,  about  six  inches;  that  the  muscles  were  bruised,  and 
the  left  leg  perfectly  helpless.  He  got  the  wound  healed,  but 
on  account  of  the  severe  bruise  of  the  muscles  the  leg  became 
paralyzed  and  useless.  On  being  asked  whether  he  thought  she 
could  be  helped  when  he  first  saw  her,  he  stated  that  he  did  not 
know  but  she  might;  that  she  might  be  helped,  and  kept  for 
breeding  purposes,  and  be  of  some  value. 

It  is  evident  from  the  testimony  that  the  plaintiff  acted  in 
good  faith  in  attempting  the  cure,  and  under  the  belief  that 
the  mare  could  be  helped,  and  be  of  some  value.     The  court 


90  CLASSIFICATION  OF  DAMAGES. 

bolow,  however,  seems  to  have  based  its  ruling  that  no  greater 
damages  could  be  recovered  than  the  value  of  the  animal,  and 
that  these  moneys  expended  in  attempting  a  cure  could  not  be 
recovered,  upon  the  ground  that  the  defendant  vi^as  not  con- 
sulted in  relation  to  the  matter  of  the  attempted  cure.  What- 
ever damages  the  plaintiff  sustained  M^ere  occasioned  by  the  neg- 
ligent conduct  of  the  defendant,  and  recovery  in  such  cases  is 
always  permitted  for  such  amoimt  as  shall  compensate  for  the 
actual  loss.  If  the  horse  had  been  killed  outright,  the  only  loss 
would  have  been  its  actual  value.  The  horse  was  seriously  in- 
jured; but  the  plaintiff,  acting  in  good  faith,  and  in  the  belief 
that  she  might  be  helped  and  made  of  some  value,  expended  this 
$35  in  care  and  medical  treatment.  He  is  the  loser  of  the  actual 
value  of  the  horse,  and  what  he  in  good  faith  thus  expended. 
He  is  permitted  to  recover  the  value,  but  cut  off  from  what  he 
has  paid  out.     This  is  not  compensation. 

Counsel  for  defendant  contends  that  such  damages  cannot 
exceed  the  actual  value  of  the  property  lost,  because  the  loss  or 
destruction  is  total.  There  may  be  cases  holding  to  this  rule; 
but  it  seems  to  me  the  rule  is  well  stated,  and  based  upon  good 
reason,  in  Watson  v.  Bridge,  14  Me.  201,  in  which  the  court  says: 
"Plaintiff  is  entitled  to  a  fair  indemnity  for  his  loss.  He  has 
lost  the  value  of  his  horse,  and  also  what  he  has  expended  in 
endeavoring  to  cure  him.  The  jury  having  allowed  this  part  of 
his  claim,  it  must  be  understood  that  it  was  an  expense  pru- 
dently incurred,  in  the  reasonable  expectation  that  it  would 
prove  beneficial.  It  was  incurred,  not  to  aggravate,  but  to  less- 
en the  amount  for  which  the  defendants  might  be  held  liable. 
Had  it  proved  successful,  they  would  have  had  the  benefit  of  it. 
As  it  turned  out  otherwise,  it  is  but  just,  in  our  judgment,  that 
they  should  sustain  the  loss. ' '  In  Murphy  v.  McGraw,  41  N.  W. 
Kep.  917,  it  appeared  on  the  trial  that  the  horse  was  worthless 
at  the  time  of  purchase  by  reason  of  a  disease  called  "eczema." 
The  court  charged  the  jury  that  if  the  plaintiff  was  led  by  de- 
fendant to  keep  on  trying  to  cure  the  horse  the  expense  thereof 
would  be  chargeable  to  the  defendant,  as  would  also  be  the  ease 
if  there  w^ere  any  circumstances,  in  the  judgment  of  the  jury, 
which  rendered  it  reasonable  that  he  should  keep  on  trying  as 
long  as  he  did  to  effect  the  cure.  The  plaintiff  recovered  for  such 
expense,  and  on  the  hearing  here  the  charge  of  the  trial  court 
was  held  correct. 


COMPENSATORY    DAMAGES,  91 

It  is  a  question,  under  the  circumstances,  for  the  jury  to 
determine  whether  the  plaintiff  acted  in  good  faith,  and  upon 
a  reasonable  belief  that  the  horse  could  be  cured,  or  made  of 
some  value,  if  properly  taken  care  of;  and  the  trial  court  was 
in  error  in  withdrawing  that  part  of  the  case  from  them.  Such 
damages,  of  course,  must  always  be  confined  within  reasonable 
bounds,  and  no  one  would  be  justified,  under  any  circumstances, 
in  expending  more  than  the  animal  was  worth  in  attempting  a 
cure.  This  is  the  only  error  we  need  notice.  The  judgment  of 
the  court  below  must  be  reversed,  with  costs,  and  a  new  trial 
ordered.  -^^l  concur. 


BERNSTEIN  v.  MEECH. 

New  York,  1891,     130  N.  Y.  354. 

Bradley,  J.  By  contract  of  date  August  4,  1887,  between 
the  parties,  the  defendants  agreed  to  furnish  to  the  plaintiff 
the  opera  house  known  as  the  Academy  of  Music,  in  the  city 
of  Buffalo,  December  twenty-second,  twenty-third,  and  twenty- 
fourth,  for  four  performances  by  the  Jarbeau  Comedy  Company, 
and  for  that  purpose  the  plaintiff  agreed  to  furnish  the  services 
of  that  company  during  that  time,  and  to  take  as  the  consider- 
ation fifty  per  cent  of  the  gross  receipts  of  all  sums  realized  from 
the  performances.  When  this  contract  was  executed,  each  of 
the  parties  had  the  right  to  assume  that  the  other  would  observe 
its  stipulations.  The  performances  did  not  take  place,  and  the 
reason  why  they  did  not,  the  plaintiff  charges,  was  attributable 
to  the  breach  of  the  contract  by  the  defendants.  The  purpose 
of  this  action  was  to  recover  damages  as  the  consequence. 

The  controversy  involved  the  construction  of  correspondence 
had  between  the  parties.     *     *     * 

There  was  no  error  in  the  refusal  of  the  court  to  direct  a 
verdict  for  the  defendants. 

The  remaining  questions  have  relation  to  the  damages  which 
were  the  subject  of  the  plaintiff's  recovery.  The  general  rule 
on  the  subject  would  permit  him,  in  case  of  breach  by  the  de- 
fendants, to  recover  the  value  of  his  contract.  And  that  was 
dependent  upon  the  receipts  to  be  realized  from  the  con- 
templated performances  by  the  plaintiff's  company.  The  results 
which  would  in  that  respect  have  been  produced  if  the  com- 
pany had  been  permitted  to  perform  the  contract  were  specula- 


92  CLASSIFICATION  OP  DAMAGES, 

tive,  and  by  no  probative  means  ascertainable.  It  is  contended 
on  the  part  of  the  defendants  that  recovery  could  be  founded  on 
no  other  basis,  and  therefore  the  plaintiff  could  recover  nominal 
ilaniages  only.  The  value  of  the  contract  to  the  plaintiff  was  in 
the  prolits,  and  in  the  amount  of  them  which  may  have  been 
realized  over  his  expenses  attending  its  performance.  Those 
protits  not  being  susceptible  of  proof,  were  not  the  subject  of 
recovery.  But  by  the  breach  of  the  contract  by  the  defendants, 
the  plaintiff  was  denied  the  opportunity  which  the  observance  of 
it  could  have  given  him  to  realize  fifty  per  centum  of  such  re- 
ceipts as  would  have  been  produced  by  it.  His  loss  also  con- 
sisted of  the  expenses  by  him  incurred  to  prepare  and  provide 
for  such  performance.  While  the  plaintiff  was  unable  to  prove 
the  value  in  profits  of  his  contract,  he  was  properly  permitted 
to  recover  the  amount  of  such  loss,  as  it  appeared  he  had  suf- 
fered by  the  defendants'  breach.  Griffin  v.  Colver,  16  N.  Y.  489. 
The  evidence  warranted  the  conclusion  that  the  plaintiff, 
through  his  agent,  made  preparations  for  the  performance  of  the 
contract,  and  that  the  plaintiff  with  his  troupe  appeared  at  Buf- 
falo, prepared  and  in  readiness  to  do  so.  The  amount  of  his 
expenses  incurred  for  the  purpose  of  such  performance  was 
proved,  and  they  were  the  basis  of  the  recovery.  It  is  unneces- 
sary to  refer  specitically  to  the  items  of  those  expenses.  The 
jury  were,  upon  the  evidence,  permitted  to  find  that,  to  the 
amount  of  the  recovery,  they  were  legitimately  incurred  for  the 
purposes  of  the  performance  of  the  contract,  and  that  with  a 
view  to  such  purpose  the  plaintiff  suffered  a  loss  to  that  extent. 
Those  expenses  may  be  deemed  to  have  been  fairly  within  con- 
templation when  the  contract  was  made.  It  cannot  be  assumed 
that  any  part  of  this  loss  would  have  been  sustained  by  the 
plaintiff  if  he  had  been  permitted  to  perform  his  contract.  And 
assuming,  as  we  must  here,  that  the  exclusion  of  the  plaintiff's 
company  from  the  use  of  the  opera  house  at  the  time  in  question 
was  caused  by  the  defendants'  breach  of  the  contract,  the  plain- 
tiff's loss,  equal  to  the  amount  of  his  expenses  legitimately  and 
essentially  incurred  for  the  purpose  of  its  performance,  was  the 
consequence  of  their  default,  and  properly  recoverable  by  him. 
Driggs  V.  Dwight,  17  Wend.  71  ;  Giles  v.  0 'Toole,  4  Barb.  261; 
Taylor  v.  Bradley,  39  N.  Y.  129,  142.  These  views  lead  to  the 
conclusion  that  none  of  the  exceptions  were  well  taken,  and 
that  the  judgment  should  be  affirmed. 


COMPENSATORY   DAMAGES.  93 

a     Physician's  Fees. 

SIBLEY  V.  NASON. 
Massachusetts,    1907.     196    Mass.    125. 

Several  questions  are  raised  respecting  the  effect  upon  the 
plaintiff's  right  to  maintain  his  action  and  the  damages  he  may 
recover,  growing  out  of  the  fact  that  in  March,  1904,  he  was  duly 
adjudged  a  bankrupt  and  the  ordinary  proceedings  were  had ; 
the  accident  having  occurred  on  the  11th  day  of  July,  1902,  and 
this  action  having  been  begun  on  the  9th  of  August,  1902.  It 
is  first  urged  that  the  plaintiff  is  debarred  from  the  right  to 
maintain  his  action  by  reason  of  the  bankruptcy.  The  bankruptcy 
act  (Act  July  1,  1898,  c.  541,  30  Stat.  565,  566  [U.  S.  Comp.  St. 
1901,  p.  3451])  provides  in  section  70a  that  "the  trustee 
*  *  *  shall  *  *  *  be  vested  by  operation  of  law  with 
the  title  of  the  bankrupt  as  of  the  date  he  was  adjudged  bank- 
rupt, *  *  *  to  all  (5)  property  which  prior  to  the  filing  of 
the  petition  he  could  by  any  means  have  transferred,  or  w^hich 
might  have  been  levied  upon  and  sold  under  judicial  process 
against  him;  *  *  *  (6)  rights  of  action  arising  upon  con- 
tracts or  from  the  unlawful  taking  or  detention  or  from  injury 
to  his  property."  This  action,  having  been  brought  for  damages 
to  the  person  of  the  plaintiff,  could  not  by  any  means  have  been 
transferred  by  him.  Rice  v.  Stone,  1  Allen,  566 ;  Robinson  v. 
Wiley,  188  Mass.  533 ;  Flynn  v.  Butler,  189  Mass.  377.  It  was 
not  property  nor  a  right  of  property  until  it  w^as  reduced  to  a 
judgment.  Stone  v.  Boston  &  Maine  Railroad,  7  Gray,  539.  It 
could  not  be  reached  by  trustee  process.  Thayer  v.  Southwick, 
8  Gray,  229 ;  Wilde  v.  Mahaney,  183  Mass.  455.  Nor  could  it  be 
reached  in  equity  by  a  creditors'  bill.  Bennett  v.  Sw^eet,  171 
Mass.  600;  Billings  v.  Marsh,  153  IMass.  311.  The  liability  being 
disputed,  the  claim  was  not  subject  to  taxation  and  therefore 
could  not  be  levied  upon  or  reached  by  the  assessor  or  tax  col- 
lector, Deane  v.  Hathaway,  136  ]\Iass.  129.  Thus  it  appears  that 
the  claim  which  the  plaintiff  was  prosecuting  against  the  de- 
fendant is  not  properly  described  by  any  of  the  phraseology  in 
subsection  5.  Subsection  6  is  limited  to  rights  of  action  arising 
upon  contract  or  respecting  property  and  does  not  include  an 
action  of  tort  for  personal  injuries.  It  is  not.  and  never  has 
been,  the  policy  of  the  law  to  coin  into  money  for  the  profit  of 
his  creditors  the  bodily  pain,  mental  anguish  or  outraged  feelings 


94  CLASSIFICATION  OF  DAMAGES. 

of  a  bankrupt.  None  of  the  federal  or  English  bankruptcy  acts, 
nor  our  own  insolvency  statutes,  have  gone  to  that  length.  It  has 
been  held  that  the  following  actions  do  not  pass  to  the  trustee  or 
assignee:  Malicious  prosecution  (In  re  llaensell  [D.  C]  91  Fed. 
357 ;  Noonan  v.  Orton,  34  Wis.  259 ;  Francis  v.  Burnett,  84  Ky. 
223)  ;  slander  (Dillard  v.  Collins,  25  Grat.  [Va.]  343)  ;  seduction 
of  sen-ant  (Howard  v.  Crowther,  8  M.  &  W.  601)  ;  malicious 
attachment  (Brewer  v.  Dew,  11  M.  &  W.  625)  ;  deceit  (In  re 
Crocket.  Fed.  Cas.  No.  3,402)  ;  malicious  trespass  (Rogers  v. 
Spence,  12  CI.  &  Fin.  700)  ;  trespass  to  ship  (Bird  v.  Hempsted,  3 
Day  [Conn.]  272)  ;  trespass  accompanied  by  personal  annoyance 
(Rose  V.  Buckett  [1901]  2  K.  B.  D.  449)  ;  negligence  of  an  at- 
torney (Wetherell  v.  Julius,  10  C.  B.  267). 

It  is  also  urged  that  the  plaintiff  is  not  entitled  to  recover,  as 
an  element  of  damage,  for  the  wages  which  he  would  have  earned 
between  the  date  of  his  accident  and  his  adjudication  in  bank- 
ruptcy. If  the  defendant 's  requests  for  instructions  be  construed 
narrowly,  they  were  properly  refused,  for  the  reason  that  under 
the  bankruptcy  act  property  acquired  between  the  date  of  the 
filing  of  the  petition  and  the  date  of  the  adjudication  in  bank- 
ruptcy does  not  pass.  But,  looking  at  the  question  broadly,  the 
contention  cannot  be  sustained.  The  cause  of  action  for  which 
the  plaintiff  was  entitled  to  recover  damages  on  account  of  the 
pain  and  suffering  which  he  had  endured  and  was  likely  to  en- 
dure, as  well  as  his  loss  of  time,  was  indivisible.  Doran  v.  Cohen, 
147  Mass.  342.  Moreover,  the  wages  which  the  plaintiff  might 
have  earned,  if  not  injured,  are  not  strictly  recoverable.  The 
value  of  his  time,  while  prevented  from  working  by  reason  of  the 
negligence  of  the  defendant,  is  a  proper  element  to  be  considered 
in  fixing  the  damages.  Braithwaite  v.  Hall,  168  Mass.  38 ; 
AYhipple  v.  Rich,  180  Mass.  477.  The  personal  injury  is  the  gist 
of  the  action.  The  other  elements  of  damage  are  incidents  only 
of  this  main  cause  of  action.  Prayers  8  and  9  were  therefore 
properly  refused. 

The  final  question  argued  is  that  the  plaintiff  was  not  entitled 
to  recover  for  debts  incurred  for  physicians'  services,  never  paid 
by  the  plaintiff,  but  proved  against  his  estate  in  bankruptcy  or 
included  in  his  schedules.  A  plaintiff  in  an  action  for  personal 
injury  is  entitled  to  recover  for  reasonable  expenditures  for  nurs- 
ing and  physicians'  care  rendered  necessary  by  the  wrongful  act 
of  the  defendant.     Turner  v.  B.  &  M.  R.  R.,  158  Mass.  261; 


COMPENSATORY   DAMAGES.  95 

McGarrahan  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  171  Mass.  211 ;  Atwood 
V.  Boston  Forwarding  &  Transfer  Co.,  185  Mass.  557 ;  Scullane  v. 
Kellogg,  169  Mass.  544.  It  may  be  assiuned  that  the  bills  incurred 
by  the  present  plaintiff  for  physicians '  services  would  be  barred 
by  his  discharge  in  bankruptcy.  This  fact,  however,  does  not  pre- 
vent the  plaintiff  from  treating  such  obligations  as  debts  of 
honor.  It  is  through  no  virtue  of  the  defendant  that  the  plaintiff 
will  be  enabled  to  interpose  any  defense  to  the  payment  of  a 
reasonable  charge  for  these  services  for  the  amelioration  of  his 
suffering,  but  rather  the  clemency  of  the  law  to  his  financial  dis- 
tress. Under  these  circumstances,  the  law  ought  not  to  prevent 
or  discourage  the  exercise  of  a  debtor's  conscience  respecting  his 
past  indebtedness.  See  Klein  v.  Thompson,  19  Ohio  St.  569; 
Denver,  etc.,  Co.  v.  Lorentzen,  79  Fed.  291. 

Exceptions  overruled. 


SCHMITT  V.  KURRUS. 

Illinois,  1908.     234  111,  578. 

Action  for  assault  and  battery. 

Cartwright,  C.  J.  John  Schmitt,  the  appellee,  brought  this 
action  of  trespass  for  assault  and  battery  against  F.  J.  Kurrus, 
the  appellant,  in  the  city  court  of  East  St.  Louis.  There  was  a 
plea  of  not  guilty  and  a  trial  by  jury,  which  ended  with  a  ver- 
dict finding  the  appellant  guilty  and  assessing  appellee 's  damages 
at  $1,690.10.  The  court  overruled  a  motion  for  a  new  trial  and 
entered  judgment  on  the  verdict.  The  Appellate  Court  for  the 
Fourth  District  affirmed  the  judgment. 

The  facts  proved  are  substantially  as  follows:  The  defendant 
had  attended  a  meeting  of  his  lodge  on  the  night  of  July  6,  1906, 
and  afterward  went  with  five  of  his  friends  to  a  restaurant,  where 
he  had  a  supply  of  fresh  croppies  which  he  had  previously  ar- 
ranged to  have  fried  for  a  supper.  The  party  remained  at  the 
restaurant  until  near  midnight  and  had  supper,  during  which 
they  each  drank  four  glasses  of  beer.  They  left  the  restaurant 
about  midnight,  and  in  passing  along  the  street  came  to  the  place 
of  business  of  the  Bodenburg  Commission  Company,  which  dealt 
in  fruits  and  green  vegetables  of  all  kinds.  The  plaintiff  was  a 
salesman,  and  was  the  foreman  in  charge  of  the  store  after  11 
o'clock  at  night.  The  store  was  kept  open  at  night,  and  melons 
and  other  fruits  were  piled  on  the  sidewalk  to  be  ready  for  busi- 


96  CLASSIFICATION  OF  DAMAGES. 

ness  in  the  morning.  As  tlie  party  reached  the  store  two  colored 
men  were  sitting  on  the  sidewalk  eating  a  melon.  The  party 
stopped,  and  there  was  evidence  tending  to  prove  that  one  of 
them  dropped  a  melon  and  broke  it.  At  any  rate,  the  defendant 
took  a  melon  from  the  pile  and  walked  off  with  it.  The  plaintiff 
had  been  to  Innch,  and  coming  back  saw  a  broken  melon  on  the 
walk  and  called  upon  the  party  to  pay  for  it.  One  of  them 
gave  the  plaintiff  50  cents,  which  he  received  as  pay  for  the 
broken  melon,  and  in  the  meantime  another  clerk  had  followed 
the  defendant  for  the  purpose  of  getting  the  melon  which  he  took 
or  securing  pay  for  it.  The  defendant  gave  the  melon  back, 
saying  that  it  was  only  a  joke,  and  then  came  back  to  the  store, 
where  he  learned  that  his  companion  had  paid  the  plaintiff  50 
cents.  ■  He  testified  that  he  understood  that  the  50  cents  was  for 
the  melon  that  he  had  returned,  but  the  plaintiff  understood  that 
it  was  for  the  broken  melon.  The  defendant  demanded  from  the 
plaintiff  a  return  of  the  money,  but  plaintiff  told  him  that  he 
could  not  return  it,  that  he  had  rung  it  up  in  the  cash  register, 
and  that  defendant  would  have  to  see  Mr.  Bodenburg  about  it. 
There  was  an  altercation,  in  which  the  defendant  used  violent 
and  profane  language,  and  continued  to  demand  the  money.  The 
plaintiff  said  that  he  would  call  a  policeman,  and  went  into  the 
store  and  inside  of  the  office,  which  was  partitioned  off.  He  went 
into  the  telephone  booth,  intending  to  call  Mr.  Bodenburg,  and 
took  down  the  receiver  and  was  waiting  for  the  answer  from 
the  central  office.  The  defendant  had  followed  him  to  the  door 
of  the  booth,  and  the  evidence  for  the  plaintiff  was  that  the 
defendant  struck  the  glass  door  of  the  booth  with  his  fist  and 
broke  it.  A  piece  of  the  glass  went  into  the  plaintiff's  eye,  and  a 
board  nailed  on  the  inside  of  the  door  with  a  list  of  grocerymen 
that  the  store  would  ring  for  on  the  telephone  was  knocked  off. 
Defendant  testified  that  he  did  not  strike  the  glass,  and  that  was 
his  only  defense. 

During  the  course  of  the  trial  the  plaintiff  sought  to  prove 
what  he  had  paid  to  doctors  for  medical  and  surgical  treatment 
for  his  injury,  and  the  defendant  objected,  stating  that  his  ob- 
jection was  that  the  proper  method  was  to  prove  what  would  be 
a  fair  and  reasonable  charge,  and  there  was  then  no  evidence 
to  show  that  the  fee  charged  was  the  usual  and  customary  one. 
The  objection  was  overruled  and  the  evidence  admitted.  In  or- 
der to  recover  for  medical  and  surgical  services  and  treatment. 


COMPENSATORY   DAMAGES.  97 

it  was  necessary  for  the  plaintiff  to  prove  two  things;  First,  that 
he  had  paid  or  become  liable  to  pay  a  specified  amount;  and, 
second,  that  the  charges  made  were  the  usual  and  reasonable 
charges  for  services  of  that  nature.  He  could  recover  no  more 
than  the  amount  which  he  had  paid  or  become  liable  to  pay, 
even  if  it  was  less  than  the  usual  and  reasonable  charge  for  such 
services ;  and,  on  the  other  hand,  he  could  not  recover  more  than 
such  usual  and  reasonable  charge  even  if  he  had  paid  more. 
North  Chicago  Street  Railway  Co.  v.  Cotton,  140  111.  486.  The 
first  essential  fact  to  be  proved  was  what  the  plaintiff  had  paid. 
The  defendant  might  properly  have  insisted  upon  an  assurance 
that  the  further  requisite  proof  would  be  made  and  the  court 
might  properly  have  required  such  an  assurance  from  plaintiff, 
but  the  evidence  was  competent  when  offered,  and  the  court  did 
not  err  in  the  ruling.  When  it  was  not  followed  by  proof  that 
the  charge  was  the  usual  and  reasonable  one,  the  defendant  might 
have  moved  the  court  to  strike  out  the  evidence,  which  the  court 
undoubtedly  would  have  done,  and  advised  the  jury  that  no 
allowance  could  be  made  on  account  of  it. 

It  is  also  contended  that  the  court  erred  in  admitting  evidence 
of  the  financial  condition  of  the  parties.  The  plaintiff  was  al- 
lov/ed  to  prove  that  he  was  a  poor  man,  having  nothing  but  a 
little  household  furniture  and  owing  considerable  debts,  and  also 
to  prove  the  value  of  defendant's  property.  The  actual  damages 
suffered  could  not  be  increased  or  diminished  on  account  of  the 
financial  condition  of  the  parties ;  but  it  was  early  settled  in  this 
state  in  the  case  of  IMcNamara  v.  King,  2  Gilman,  432,  that,  in 
actions  of  trespass  for  assault  and  battery,  the  condition  in  life 
and  circumstances  of  the  parties  are  proper  subjects  for  the  con- 
sideration of  the  jury  in  estimating  the  damages.  In  such  actions 
the  jury  may  allow  damages,  not  only  to  compensate  the  plaintiff, 
but  also  to  punish  the  defendant  according  to  the  circumstances 
of  the  case,  and  for  that  purpose  may  take  into  consideration  the 
pecuniary  resources  of  the  defendant.  The  principle  has  been 
extended  to  other  classes  of  eases  where  exemplary  damages  are 
recoverable.  Cochran  v.  Ammon,  16  111.  316;  Peters  v.  Lake, 
66  111.  206  ;  White  v.  Murtland,  71  111.  250.  This  was  a  proper  case 
for  the  allowance  of  exemplary  damages  and  the  evidence  of 
financial  condition  was  proper.  The  money  which  the  defendant 
was  demanding  was  not  his,  and  there  was  no  excuse  whatever  for 
the  assault. 


98  CLASSIFICATION  OP  DAMAGES. 

The  seventh  instruction  authorized  the  jury  to  take  into  ac- 
count the  tinancial  circumstances  of  the  plaintiff  and  the  de- 
fendant if  they  found  that  the  defendant  committed  the  assault 
and  caused  the  injury  to  the  plaintiff's  eye,  as  alleged  in  the 
declaration.  If  the  assault  was  proved,  the  case  was  clearly  one 
where  exemplary  damages  might  be  recovered,  and  the  instruction 
was  not  erroneous. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


(6)     Pai7i  and  Suffering. 
•   GOODHART  v.  PENNSYLVANIA  R.  R.  CO. 

Pennsylvania,  1896.     177  Pa.  ,1. 

Williams,  J.  The  plaintiff  received  the  injury  complained  of 
while  a  passenger  on  one  of  the  trains  of  the  defendant  company. 
*  *  *  Damages  for  a  personal  injury  consist  of  three  prin- 
cipal items:  First,  the  expenses  to  which  the  injured  person  is 
subjected  by  reason  of  the  injury  complained  of;  second,  the  in- 
convenience and  suffering  naturally  resulting  from  it ;  third,  the 
loss  of  earning  power  if  any,  and  whether  temporary  or  per- 
manent, consequent  upon  the  character  of  the  injury.  Owens 
V.  Railway  Co.,  155  Pa.  334. 

The  expenses  for  which  a  plaintiff  may  recover  must  be  such 
as  have  been  actually  paid,  or  such  as,  in  the  judgment  of  the 
jury,  are  reasonably  necessary  to  be  incurred.  The  plaintiff 
cannot  recover  for  the  nursing  and  attendance  of  the  members 
of  his  own  household,  unless  they  are  hired  servants.  The  care 
of  his  wife  and  minor  children  in  ministering  to  his  needs  in- 
volves the  performance  of  the  ordinary  offices  of  affection,  which 
is  their  duty;  but  it  involves  no  legal  liability  on  his  part,  and^ 
therefore  affords  no  basis  for  a  claim  against  a  defendant  for  ex- 
penses incurred.  A  man  may  hire  his  owti  adult  children  to 
work  for  him  in  the  same  manner  and  with  same  effect  that  he 
may  hire  other  persons,  but,  in  the  absence  of  an  express  con- 
tract, the  law  will  not  presume  one,  so  long  as  the  family  re- 
lation continues. 

Pain  and  suffering  are  not  capable  of  being  exactly  measured 
by  an  equivalent  in  money,  and  we  have  repeatedly  said  that 
they  have  no  market  price.     The  question  in  any  given  case  is 


COMPENSATORY    DAMAGES.  99 

not  what  it  would  cost  to  hire  some  one  to  undergo  the  measure 
of  pain  alleged  to  have  been  suffered  by  the  plaintiff,  but  what, 
imder  all  the  circumstances,  should  be  allowed  the  plaintiff  in 
addition  to  the  other  items  of  damage  to  which  he  is  entitled,  in 
consideration  of  suffering  necessarily  endured.  Baker  v.  Penn- 
sylvania Co.,  142  Pa.  503.  This  should  not  be  estimated  by  a 
sentimental  or  fanciful  standard,  but  in  a  reasonable  manner, 
as  it  is  wholly  additional  to  a  pecuniary  compensation  afforded 
by  the  first  and  third  items  that  enter  into  the  amount  of  the 
verdict  in  such  cases. 

By  way  of  illustration,  let  us  assume  that  a  plaintiff  has  been 
wholly  disabled  from  labor  for  a  period  of  20  days  in  conse- 
quence of  an  injury  resulting  from  the  negligence  of  another. 
This  lost  time  is  capable  of  exact  compensation.  It  will  require 
so  much  money  as  the  injured  man  might  have  reasonably 
earned  in  the  same  time  by  the  pursuit  of  his  ordinary  calling. 
But  let  us  further  assume  that  these  days  of  enforced  idleness 
have  been  days  of  severe  bodily  suffering.  The  question  then 
presented  for  the  consideration  of  the  jury  w^ould  be:  What  is 
it  reasonable  to  add  to  the  value  of  the  lost  time  in  view  of  the 
fact  that  the  days  were  filled  with  pain,  instead  of  being  devoted 
to  labor?  Some  allowance  has  been  held  to  be  proper;  but,  in 
answer  to  the  question,  ' '  How  much  ? ' '  the  only  reply  yet  made 
it  that  it  should  be  reasonable  in  amount. 

Pain  cannot  be  measured  in  money.  It  is  a  circumstance, 
however,  that  may  be  taken  into  the  account  in  fixing  the  allow- 
ance that  should  be  made  to  an  injured  party  by  way  of  dam- 
ages. An  instruction  that  leaves  the  jury  to  regard  it  as  an 
independent  item  of  damages,  to  be  compensated  by  a  sum  of 
money  that  may  be  regarded  as  a  pecuniary  equivalent,  is  not 
only  inexact,  but  it  is  erroneous.  The  word  ' '  compensation, ' '  in 
the  phrase  ''compensation  for  pain  and  suffering,"  is  not  to  be 
understood  as  meaning  price  or  value,  but  as  describing  an 
allowance  looking  toward  recompense  for  or  made  because  of  the 
suffering  consequent  upon  the  injury.  In  computing  the  dam- 
ages sustained  by  an  injured  person,  therefore,  the  calculation 
may  include  not  only  loss  of  time  and  loss  of  earning  power, 
but,  in  a  proper  case,  an  allowance  because  of  suffering. 

The  third  item,  the  loss  of  earning  power,  is  not  always  easy  of 
calculation.  It  involves  an  inquiry  into  the  value  of  the  labor, 
physical  or  intellectual,  of  the  person  injured,  before  the  acci- 


100  CLASSIFICATION  OF  DAMAGES. 

ck'iit  happened  to  him,  and  the  ability  of  the  same  person  to  earn 
money  by  hibor  physical  or  intellectual,  after  the  injury  was 
received. 

Profits  derived  from  an  investment  or  the  management  of  a 
business  enterprise  are  not  earnings.  The  deduction  from  such 
profits  of  the  legal  rate  of  interest  on  the  money  employed  does 
not  give  to  the  balance  of  the  profits  the  character  of  earnings. 
The  word  "earnings"  means  the  fruit  or  reward  of  labor;  the 
price  of  services  performed.  Anderson's  haw  Dictionary,  390. 
Profits  represent  the  net  gain  made  from  an  investment,  or  from 
the  prosecution  of  some  business,  after  the  payment  of  all  ex- 
penses incurred.  The  net  gain  depends  largely  on  other  cir- 
cumstances than  the  earning  capacity  of  the  persons  managing 
the  business.  The  size  and  location  of  tlie  town  selected,  the 
character  of  the  commodities  dealt  in,  the  degree  of  competition 
encountered,  the  measure  of  prosperity  enjoyed  by  the  commu- 
nity, may  make  an  enterprise  a  decided  success,  which  under  less 
favorable  circumstances,  in  the  hands  of  the  same  persons,  might 
turn  out  a  failure.  The  profits  of  a  business  with  which  one  is 
connected  cannot,  therefore,  be  made  use  of  as  a  measure  of  his 
earning  power.  Such  evidence  may  tend  to  show  the  possession 
of  business  qualities,  but  it  does  not  fix  their  value.  Its  admis- 
sion for  that  purpose  w^as  error. 

It  was  also  error  to  treat  this  subject  of  the  value  of  earning 
power  as  one  to  be  settled  by  expert  testimony.  An  expert  in 
banking  or  merchandizing  might  form  an  opinion  about  v/hat  a 
man  possessing  given  business  qualifications  ought  to  be  able  to 
earn,  but  this  is  not  the  question  the  jury  is  to  determine.  They 
are  interested  only  in  knowing  what  he  did  actually  earn,  or 
what  his  services  were  reasonably  worth,  prior  to  the  time  of 
his  injury.  In  settling  this  question,  they  should  consider  not 
only  his  past  earnings,  or  the  fair  value  of  services  such  as  he 
was  able  to  render,  but  his  age,  state  of  health,  business  habits, 
and  manner  of  living.     *     *     * 

Another  subject  requires  consideration.  The  verdict  rendered 
by  the  jury  gives  the  calculation  upon  which  the  enormous  sum 
awarded  to  the  plaintiff  was  based.  From  this  it  appears  that 
the  sum  of  $19,526.50  was  given  as  the  cost  of  an  annuity  of 
$1,750  per  annum  for  19  years.  This  calculation  assumes  (1) 
that  the  plaintiff's  earning  power  was  nearly  twice  as  great  as 
he  hr.d  himself  offered  it  for  to  the  compan.v  whose  president 


COMPENSATORY   DAMAGES.  101 

and  manager  he  was.  It  assumes  (2)  that  he  had  a  reasonable 
expectation  of  life  for  19  years,  being  at  the  time  of  the  trial 
about  53  years  old.  It  assumes  (3)  that  his  earning  power  in- 
stead of  steadily  decreasing  with  increasing  years,  would  hold 
up  at  its  maximum  to  the  very  end  of  life.  It  assumes,  in  the 
fourth  place,  that  he  is  entitled  to  recover,  not  only  the  present 
worth  of  his  future  earnings,  as  the  jury  has  estimated  them,  but 
a  sufficient  sum  to  enable  him  to  go  out  into  the  market,  and 
purchase  an  annuity  now,  equal  to  his  estimated  earnings. 

The  first,  second,  and  third  of  these  are  assumptions  of  fact. 
The  fourth  is  an  assumption  of  law,  and  is  clearly  wrong.  When 
future  payments  are  to  be  anticipated  and  capitalized  in  a  ver- 
dict, the  plaintiff  is  entitled  only  to  their  present  worth.  This 
is  the  exact  equivalent  of  the  anticipated  sums.     *     *     * 

From  what  has  been  now  said,  it  follows  that  substantially  all 
of  the  assignments  of  error  are  sustained.  The  judgment  is  re- 
versed and  a  venire  facias  de  novo  awarded. 

Sterrett,  C.  J.  dissents. 


(7)     Mental  Anguish. 
CANNING  V.  WILLIAMSTOWN. 

Massachusetts,  1848.     1  Cush.  451. 

This  was  an  action  on  the  case  to  recover  damages  for  an 
injury  sustained  by  the  plaintiff,  in  consequence  of  a  defect 
in  a  bridge  in  the  town  of  Williamstown. 

Plaintiff  was  riding  over  a  bridge  in  a  light  carriage  drawn 
by  two  horses.  When  he  reached  the  center  of  the  bridge  it 
gave  way,  and  plaintiff  fell  upon  rocks  in  the  stream  below  and 
was  injured  in  the  face,  and  was  put  in  considerable  peril. 

Metcalf,  J.  The  Rev.  Sts.  c.  25,  §  22,  provide,  that  if  any 
person  "shall  receive  any  injury  in  his  person,"  by  reason  of 
any  defect  or  want  of  repair  in  a  road,  he  may  recover  of  the 
party,  that  is  by  law^  obliged  to  repair  the  road,  the  amount  of 
damage  sustained  by  such  injury. 

The  argument  for  the  defendants  assumes  that  the  plaintiff 
sustained  no  injury  in  his  person,  within  the  meaning  of  the 
statute,  but  merely  incurred  risk  and  peril,  which  caused  fright 
and  mental  suffering.  If  such  were  the  fact,  the  verdict  would 
be  contrary  to  law.    But  we  must  suppose  that  the  jury,  under 


102  CLASSIFICATION  OF  DAMAGES. 

the  instnietions  given  to  tliem,  found  that  the  plaintiff  received 
an  injury  in  his  person— a  bodily  injury — and  that  they  did 
not  return  their  verdict  for  damages  sustained  by  mere  mental 
suffering  caused  by  the  risk  and  peril  which  he  incurred.  And 
though  that  bodily  injury  may  have  been  very  small,  yet  if  it 
was  a  ground  of  action,  within  the  statute,  and  caused  mental 
suffering  to  the  plaintiff,  that  suffering  was  a  part  of  the  injury 
for  which  he  was  entitled  to  damages. 

We  are  of  opinion,  that  there  was  no  error  in  the  instructions ; 
and  we  cannot  presume  that  they  were  misunderstood  or  dis- 
regarded by  the  jury.  Exceptions  overruled. 


VICTORIAN  RYS.  COM'RS  v.  COULTAS. 

House  of  Lords,  1888.    L.  R.  13  App.  Cas.  222. 

Appeal  from  the  Supreme  Court  of  Victoria. 

The  plaintiffs,  James  and  Mary  Coultas,  were  driving  over 
a  level  crossing  and  were  in  imminent  peril  of  being  killed  by 
a  train.  On  coming  to  the  track  of  the  railway  they  found  the 
gates  closed.  The  gateman  opened  the  gate  nearest  them  and 
they  drove  upon  the  track,  when  they  saw  an  approaching  train. 
James  Coultas  whipped  up  his  horse,  so  that  he  managed  to  get 
the  buggy  across  and  through  the  farther  gate,  so  that  the  train 
did  not  touch  the  buggy.  It  passed  very  close,  however,  and 
Mary  Coultas  fainted  from  fright.  She  suffered  a  severe  ill- 
ness and  her  nervous  system  was  greatly  shocked.  There  was 
no  impact  or  physical  damage.  Judgment  was  rendered  in  favor 
of  the  plaintiff's  in  two  several  sums  of  £342  2s.  and  £400  and 
costs. 

Sir  Richard  Couch.  *  *  *  According  to  the  evidence 
of  the  female  plaintiff  her  fright  was  caused  by  seeing  the  train 
approaching,  and  thinking  they  were  going  to  be  killed.  Dam- 
ages arising  from  mere  sudden  terror  unaccompanied  by  any 
actual  physical  injury,  but  occasioning  a  nervous  or  mental 
shock,  cannot  under  such  circumstances,  their  Lordships  think, 
be  considered  a  consequence  which,  in  the  ordinary  course  of 
things,  would  flow  from  the  negligence  of  the  gate-keeper.  If 
it  were  held  that  they  can,  it  appears  to  their  Lordships  that  it 
would  be  extending  the  liability  for  negligence  much  beyond 
what  that  liability  has  hitherto  been  held  to  be.  Not  only  in 
such  a  case  as  the  present,  but  in  every  case  where  an  accident 


COMPENSATORY  DAMAGES.  103 

caused  by  negligence  had  given  a  person  a  serious  nervous  shock, 
there  might  be  a  claim  for  damages  on  acount  of  mental  injury. 
The  difficulty  which  now  often  exists  in  case  of  alleged  physical 
injuries  of  determining  whether  they  were  caused  by  the  negli- 
gent act  would  be  greatly  increased,  and  a  wide  field  opened 
for  imaginary  claims.  The  learned  counsel  for  the  respondents 
was  unable  to  produce  any  decision  of  the  English  courts  in 
which,  upon  such  facts  as  were  proved  in  this  case,  damages 
were  recovered.  The  decision  of  the  Supreme  Court  of  New 
York  which  he  referred  to  in  support  of  his  contention  was  a 
case  of  palpable  injury  caused  by  a  boy,  who  was  frightened 
by  the  defendant 's  violence,  seeking  to  escape  from  it,  and  is  like 
the  ease  of  Sneesby  v.  Lancashire  &  Yorkshire  Railway  Com- 
pany, 1  Q.  B.  D.  42.  It  is  remarkable  that  no  precedent  has 
been  cited  of  an  action  similar  to  the  present  having  been  main- 
tained or  even  instituted,  and  their  Lordships  decline  to  estab- 
lish such  a  precedent.  They  are  of  opinion  that  the  first  ques- 
tion, whether  the  damages  are  too  remote,  should  have  been 
answered  in  the  affirmative,  and  on  that  ground,  without  say- 
ing that  "impact"  is  necessary,  that  the  judgment  should  have 
been  for  the  defendants.  They  will  therefore  humbly  advise 
Her  Majesty  to  reverse  the  judgment  for  the  plaintiffs  and  to 
order  judgment  to  be  entered  for  the  defendants,  with  the  costs, 
etc. 


LARSON  V.  CHASE. 

Minnesota,  1891.     47  Minn.  307. 

Mitchell,  J,  This  was  an  action  for  damages  for  the  unlaw- 
ful mutilation  and  dissection  of  the  body  of  plaintiff's  deceased 
husband.  The  complaint  alleges  that  she  was  the  person  charged 
with  the  burial  of  the  body,  and  entitled  to  the  exclusive  charge 
and  control  of  same.  The  only  damages  alleged  are  mental  suf- 
fering and  nervous  shock.  A  demurrer  to  the  complaint,  as  not 
stating  a  cause  of  action,  was  overruled,  and  the  defendant  ap- 
pealed.    *     *     * 

It  is  elementary  that  while  the  law,  as  a  general  rule  only 
gives  compensation  for  actual  injury,  yet,  whenever  the  breach 
of  a  contract,  or  the  invasion  of  a  legal  right  is  established  the 
law  infers  some  damage,  and  if  no  evidence  is  given  of  any  par- 
ticular amount  of  loss,  it  declares  the  right  by  awarding  nominal 


104  CLASSIFICATION  OF  DAMAGES. 

damages.  Every  injury  imports  a  damage.  Hence  the  com- 
plaint stated  a  cause  of  action  for  at  least  nominal  damages. 
We  think  it  states  more.  There  has  been  a  great  deal  of  mis- 
conception and  confusion  as  to  when,  if  ever,  mental  suffering, 
as  a  distinct  element  of  damage,  is  a  subject  for  compensation. 
This  has  frequently  resulted  from  courts  giving  a  wrong  reason 
for  a  correct  conclusion  that  in  a  given  case  no  recovery  could 
be  had  for  mental  suffering,  placing  it  on  the  groimd  that  men- 
tal suffering,  as  a  distinct  element  of  damage,  is  never  a  proper 
subject  of  compensation,  when  the  correct  ground  was  that  the 
act  complained  of  was  not  an  infraction  of  any  legal  right,  and 
hence  not  an  actionable  wrong  at  all,  or  else  that  the  mental 
suffering  was  not  the  direct  and  proximate  effect  of  the  wrong- 
ful act.  Counsel  cites  the  leading  case  of  Lynch  v.  Knight,  9 
H.  L.  Cas.  577-598.  We  think  he  is  laboring  under  the  same  mis- 
conception of  the  meaning  of  the  language  used  in  that  case 
into  which  courts  have  not  infrequently  fallen.  Taking 
the  language  in  connection  with  the  question  actually  before  the 
court,  that  case  is  not  authority  for  defendant's  position.  It 
is  unquestionably  the  law,  as  claimed  by  appellant,  that  "for 
the  law  to  furnish  redress  there  must  be  an  act  which,  under 
the  circumstances,  is  wrongful;  and  it  must  take  effect  upon 
the  person,  the  property,  or  some  other  legal  interest,  of  the 
party  complaining.  Neither  one  without  the  other  is  sufficient." 
This  is  but  another  way  of  saying  that  no  action  for  damages 
will  lie  for  an  act  which,  though  wrongful,  infringed  no  legal 
right  of  the  plaintiff,  although  it  may  have  caused  him  mental 
suffering.  But,  where  the  wrongful  act  constitutes  an  infringe- 
ment on  a  legal  right,  mental  suffering  may  be  recovered  for, 
if  it  is  the  direct,  proximate,  and  natural  result  of  the  wrongful 
act.  It  was  early  settled  that  substantial  damages  might  be 
recovered  in  a  class  of  torts  where  the  only  injury  suffered  is 
mental, — as,  for  example,  an  assault  without  physical  contact. 
So.  too,  in  actions  for  false  imprisonment,  where  the  plaintiff 
was  not  touched  by  the  defendant,  substantial  damages  have 
been  recovered,  though  physically  the  plaintiff  did  not  suffer 
any  actual  detriment.  In  an  action  for  seduction  substantial  dam- 
ages are  allowed  for  mental  sufferings,  although  there  be  no 
proof  of  actual  pecuniary  damages  other  than  the  nominal  dam- 
ages? which  the  law  presumes.  The  same  is  true  in  actions  for 
breach  of  promise  of  marriage.     Wherever  the  act  complained 


COMPENSATORY    DAMAGES.  105 

of  constitutes  a  violation  of  some  legal  right  of  the  plaintiff, 
which  always,  in  contemplation  of  law,  causes  injury,  he  is 
entitled  to  recover  all  damages  v/hich  are  the  proximate  and 
natural  consequence  of  the  wrongful  act.  That  mental  suffer- 
ing and  injury  to  the  feelings  would  be  ordinarily  the  natural 
and  proximate  result  of  knowledge  that  the  remains  of  a  de- 
ceased husband  had  been  mutilated  is  too  plain  to  admit  of  argu- 
ment. In  Meagher  v.  Driscoll,  99  Mass.  281,  where  the  defend- 
ant entered  upon  plaintiff's  land,  and  dug  up  and  removed  the 
dead  body  of  his  child,  it  was  held  that  plaintiff  might  recover 
compensation  for  the  mental  anguish  caused  thereby.  It  is  true 
that  in  that  case  the  court  takes  occasion  to  repeat  the  old  say- 
ing that  a  dead  body  is  not  property,  and  makes  the  gist  of  the 
action  the  trespass  upon  plaintiff's  land;  but  it  would  be  a  re- 
proach to  the  law  if  a  plaintiff's  right  to  recover  for  mental 
anguish  resulting  from  the  mutilation  or  other  disturbance  of 
the  remains  of  his  dead  should  be  made  to  depend  upon  whether 
in  committing  the  act  the  defendant  also  committed  a  technical 
trespass  upon  plaintiff's  premises,  while  everybody's  common 
sense  would  tell  him  that  the  real  and  substantial  wrong  was 
not  the  trespass  on  the  land,  but  the  indignity  to  the  dead. 

Order  affirmed. 


SLOANE  V.   SOUTHERN  CALIFORNIA  RY.  CO. 

California,  1896.     Ill  Cal.  668. 

The  plaintiff,  Anna  L.  Sloane,  purchased  a  ticket  from  the 
defendant  railroad  and  duly  surrendered  it  to  the  conductor, 
who  gave  her  no  check  in  return.  She  was  subsequently  put 
off  the  ear  by  a  second  conductor,  who  demanded  a  ticket  or  pay- 
ment of  fare.  No  personal  violence  was  used  toward  her,  and 
she  left  the  car  by  the  direction  of  the  second  conductor.  She 
had  no  money  wdth  her.  She  walked  three  miles,  spent  the  night 
with  her  sister,  borrowed  some  money  and  went  on  the  next  day 
to  San  Diego.  The  present  action  was  brought  to  recover  dam- 
ages sustained  by  reason  of  defendant's  wrongful  acts. 

Harrison,  J.  Evidence  was  given  at  the  trial  tending  to 
show  that  Mrs.  Sloane  had  been  previously  subject  to  insomnia, 
and  also  to  nervous  shocks  and  paroxysms,  and  that,  owing  to 
her  physical  condition,  she  was  subject  to  a  recurrence  of  these 
shocks  or  nervous  disorder  if  placed  under  any  great  mental 


106  CLASSIFICATION  OP  DAMAGES. 

excitement ;  and  that,  by  reason  of  the  excitement  caused  by  her 
exclusion  from  the  car  there  had  been  a  recurrence  of  insomnia 
and  of  these  paroxysms. 

Counsel  for  the  appellant  has  discussed,  in  his  brief,  the  want 
of  liability  on  the  part  of  the  defendant  for  any  damages  for 
mental  suifering,  and  has  cited  many  authorities  in  support  of 
the  proposition  that  mere  mental  anxiety,  unaccompanied  with 
bodil}'  injury  or  apprehended  peril,  does  not  afford  a  right  of 
action.  Although  mental  suffering  alone  will  not  support  an 
action,  yet  it  constitutes  an  aggravation  of  damages  when  it 
naturally  ensues  from  the  act  complained  of.  3  Sutherland  on 
Damages — sec.  1245. 

The  real  question  presented  by  the  objections  and  exception 
of  the  appellant  is  whether  the  subsequent  nervous  disturbance 
of  the  plaintiff'  was  a  suffering  of  the  body  or  of  the  mind.  The 
interdependence  of  the  mind  and  body  is  in  many  respects  so 
close  that  it  is  impossible  to  distinguish  their  respective  in- 
fluence upon  each  other.  It  must  be  conceded  that  a  nervous 
shock  or  paroxysm,  or  a  disturbance  of  the  nervous  system,  is 
distinct  from  mental  anguish,  and  falls  within  the  physiological, 
rather  than  the  psychological,  branch  of  the  human  organism. 
It  is  a  matter  of  general  knowledge  that  an  attack  of  sudden 
fright,  or  an  exposure  to  imminent  peril,  has  produced  in  indi- 
viduals a  complete  change  in  their  nervous  system,  and  rendered 
one  who  was  physically  strong  and  vigorous  weak  and  timid. 
Such  a  result  must  be  regarded  as  an  injury  to  the  body  rather 
than  to  the  mind,  even  though  the  mind  be  at  the  same  time 
injuriously  affected.  "Whatever  may  be  the  influence  by  which 
the  nervous  system  is  affected,  its  action  under  that  influence 
is  entirely  distinct  from  the  mental  process  which  is  set  in 
motion  by  the  brain.  The  nerves  and  nerve  centers  of  the  body 
are  a  part  of  the  physical  system,  and  are  not  only  susceptible 
of  lesion  from  external  causes,  but  are  also  liable  to  be  weak- 
ened and  destroyed  from  causes  primarily  acting  upon  the  mind. 
If  these  nerves,  or  the  entire  nervous  system,  are  thus  affected, 
there  is  a  physical  injury  thereby  produced ;  and,  if  the  primal 
cause  of  this  injury  is  tortious,  it  is  immaterial  whether  it  is  di- 
rect, as  by  a  blow,  or  indirect,  through  some  action  upon  the  mind. 

This  subject  received  a  very  careful  and  elaborate  considera- 
tion in  the  case  of  Bell  v.  Railway  Co.,  L.  R.  26  Ir.  428.  Mrs. 
Bell  was  a  passenger  upon  one  of  the  defendant's  trains,  and 


COMPENSATORY   DAMAGES.  107 

by  reason  of  the  defendant's  negligence  in  the  management  of 
its  train  suffered  great  fright,  in  consequence  of  which  her 
health  was  seriously  impaired.  She  had  previously  been  a 
strong,  healthy  woman,  but  it  was  shown  that,  after  this  occur- 
rence, she  suffered  from  fright  and  nervous  shock,  and  was 
troubled  with  insomnia,  and  that  her  health  was  seriously  im- 
paired. The  juiy  were  instructed  that  if,  in  their  opinion, 
great  fright  was  a  reasonable  and  natural  consequence  of  the 
circumstances  in  which  the  defendant  by  its  negligence  had 
placed  her,  and  that  she  was  actually  put  in  fright  by  those 
circumstances,  and  if  the  injury  to  her  health  was,  in  their 
opinion,  the  reasonable  and  natural  consequence  of  such  great 
fright,  and  was  actually  occasioned  thereby,  the  plaintiff  was 
entitled  to  recover  damages  for  such  injury.  It  was  objected 
to  this  instruction  that,  unless  the  fright  was  accompanied  by 
physical  injury,  even  though  there  might  be  a  nervous  shock 
occasioned  by  the  fright,  such  damages  would  be  too  remote.  In 
holding  that  this  objection  was  not  well  founded,  and  that  the 
nervous  shock  was  to  be  considered  as  a  bodily  injury,  the  court 
held  that,  if  such  bodily  injury  might  be  a  natural  consequence 
of  fright,  it  was  an  element  of  damage  for  which  a  recovery 
might  be  had,  and,  referring  to  the  contention  of  the  defendant, 
said: 

It  is  admitted  that,  as  the  negligence  caused  fright,  if  the 
fright  contemporaneously  caused  physical  injury,  the  damage 
would  not  be  too  remote.  The  distinction  insisted  upon  is  one 
of  time  only.  The  proposition  is  that,  although,  if  an  act  of 
negligence  produces  such  an  effect  upon  particular  structures 
of  the  body  as  at  the  moment  to  afford  palpable  evidence  of 
physical  injury,  the  relation  of  proximate  cause  and  effect  ex- 
ists between  such  negligence  and  the  injury,  yet  such  relation 
cannot  in  law  exist  in  the  case  of  a  similar  act  producing  upon 
the  same  structures  an  effect  which  at  a  subsequent  time — say 
a  week,  fortnight,  or  a  month— must  result  without  any  inter- 
vening cause  in  the  same  physical  injury.  As  well  might  it  be 
said  that  a  death  caused  by  poison  is  not  to  be  attributed  to  the 
person  who  administered  it.  becaUvSe  the  mortal  effect  is  not 
produced  contemporaneously  with  its  administration."  At  the 
close  of  his  opinion,  Lord  Chief  Baron  Palles  says:  "In  con- 
clusion I  am  of  the  opinion  that,  as  the  relation  between  fright 
and  injury  to  the  nerve  and  brain  structures  of  the  body  is  a  mat- 


108  CL.VSSIFICATION  OF  DAMAGES. 

ter  which  depends  entirely  upon  scientific  and  medical  testi- 
mony, it  is  impossible  for  any  court  to  lay  down  as  a  matter 
of  law  that,  if  negligence  cause  fright,  and  such  fright  in  its 
turn  so  affect  such  structure  as  to  cause  injury  to  health,  such 
injury  cannot  be  a  consequence  which,  in  the  ordinary  course  of 
things,  would  flow  from  the  negligence,  unless  such  injury  ac- 
companied such  negligence  in  point  of  time." 

This  case  is  quoted  at  great  length  and  with  approval  in  the 
eighth  edition  of  Mr.  Sedgwick's  treatise  on  Damages,  at  section 
860.  iMr.  Beven,  in  the  recent  edition  of  his  work  on  Negligence 
(volume  1,  pp.  77-81),  also  comments  upon  it  with  great  ap- 
proval. In  Purcell  v.  Railroad  Co.,  48  ]\Iinn.  134,  the  defendant 
so  negligently  managed  one  of  its  cars  that  a  collision  with  an 
approaching  cable  car  seemed  imminent,  and  was  so  nearly 
caused  that  the  attendant  confusion  of  ringing  alarm  bells  and 
of  passengers  rushing  out  produced  in  the  plaintiff,  who  was  a 
passenger  on  the  car,  a  sudden  fright,  which  threw  her  into 
convulsions,  and  she  being  then  pregnant,  caused  in  her  a 
miscarriage,  and  subsequent  illness.  The  court  held  that  the 
defendant's  negligence  was  the  proximate  cause  of  the  plaintiff's 
injury,  and  that  it  was  liable  therefor,  even  though  the  imme- 
diate result  of  the  negligence  was  only  fright,  saying:  "A  men- 
tal shock  or  disturbance  sometimes  causes  injury  or  illness  of 
body,  especially  of  the  nervous  system."     (Citing  authorities.) 

The  mental  condition  which  superinduced  the  bodily  harm 
in  the  foregoing  cases  was  fright,  but  the  character  of  the  mental 
excitation  by  which  the  injury  to  the  body  is  produced  is  im- 
material. If  it  can  be  established  that  tlie  bodily  harm  is  the 
direct  result  of  the  condition,  without  any  intervening  cause,  it 
must  be  held  that  the  act  which  caused  the  condition  set  in 
motion  the  agencies  by  which  the  injury  was  produced,  and  is 
the  proximate  cause  of  such  injury.  "Whether  the  indignity 
and  humiliation  suffered  by  Mrs.  Sloane  caused  the  nervous 
paroxysm,  and  the  injury  to  her  health  from  which  she  subse- 
quently suffered,  was  a  question  of  fact,  to  be  determined  by 
the  jury.  There  was  evidence  before  them  tending  to  establish 
such  fact,  and  if  they  were  satisfied,  from  that  evidence,  that 
these  results  were  directly  traceable  to  that  cause,  and  that  her 
expulsion  from  the  car  had  produced  in  her  such  a  disturbance 
of  her  nervous  system  as  resulted  in  these  paroxysms,  they  were 


COMPENSATORY   DAMAGES.  109 

authorized  to  include  in  their  verdict  whatever  damage  she  had 
thus  sustained.     *     *     * 

Van  Fleet,  J.  and  Garovtte,  J.  concurred. 

Hearing  in  Bank  denied. 


MITCHELL  V.  ROCHESTER  RY.  CO. 

;:  New  York,  1896.     151  N.  Y.  107. 

]\Iartin,  J.  The  facts  in  this  case  are  few  and  may  be  briefly 
stated.  On  the  1st  day  of  April,  1891,  the  plaintiff  v.as  standing 
upon  a  crosswalk  on  Main  street,  in  the  city  of  Rochester,  await- 
ing an  opportunity  to  board  one  of  the  defendant's  cars  which 
had  stopped  upon  the  street  at  that  place.  While  standing  there, 
and  just  as  she  was  about  to  step  upon  the  car,  a  horse  car  of 
the  defendant  came  down  the  street.  As  the  team  attached  to 
the  car  drew  near,  it  turned  to  the  right,  and  came  close  to  the 
plaintiff,  so  that  she  stood  between  the  horses'  heads  when 
they  were  stopped.  She  testified  that  from  fright  and  excite- 
ment caused  by  the  approach  and  proximity  of  the  team  she 
became  unconscious,  and  also  that  the  result  was  a  miscarriage, 
and  consequent  illness.  Medical  testimony  was  given  to  the 
effect  that  the  mental  shock  which  she  then  received  was  suffi- 
cient to  produce  that  result. 

Assuming  that  the  evidence  tended  to  show  that  the  defend- 
ant's servant  was  negligent  in  the  management  of  the  car  and 
horses,  and  that  the  plaintiff  was  free  from  contributory  negli- 
gence, the  single  question  presented  is  whether  the  plaintiff  is 
entitled  to  recover  for  the  defendant's  negligence  which  oc- 
casioned her  fright  and  alarm,  and  resulted  in  the  injuries  al- 
ready mentioned.  "While  the  authorities  are  not  harmonious 
upon  this  question,  we  think  the  most  reliable  and  better-con- 
sidered cases,  as  Avell  as  public  policy,  fully  justify  us  in  hold- 
ing that  the  plaintiff  cannot  recover  for  injuries  occasioned  by 
fright,  as  there  was  no  immediate  personal  injury.  Lehman  v. 
Railroad  Co.,  47  Hun,  355 :  Commissioners  v.  Coultas,  13  App. 
Cas.  222;  Ewing  v.  Railway  Co.,  147  Pa.  40 

The  learned  counsel  for  the  respondent  in  his  brief  very  prop- 
erly stated  that  "the  consensus  of  opinion  would  seem  to  be 
that  no  recovery  can  be  had  for  mere  fri^iht,"  as  will  be  readily 
seen  by  an  examination  of  the  following  additional  authorities: 
Haile  v.  Railroad  Co..  60  Fed.  557 ;  Joch  v.  Dankwardt,  85  111. 


110  CLASSIFICATION  OP  DAMAGES. 

331;  Canning  v.  Inhabitants  of  Williamstown,  1  Cush.  (Mass.) 
451;  Telegraph  Co.  v.  Wood,  57  Fed.  471;  Renner  v.  Canfield, 
oij  Minn.  90,  AUsop  v.  Allsop,  5  Hurl.  &  N.  534;  Johnson  v. 
Wells,  Fargo  &  Co.,  6  Nov.  224;  Wyman  v.  Leavitt,  71  Me.  227. 

If  it  be  admitted  that  no  recovery  can  be  had  for  fright 
occasioned  by  the  negligence  of  another,  it  is  somewhat  difficult 
to  understand  how  a  defendant  would  be  liable  for  its  conse- 
quences. Assuming  that  fright  cannot  form  the  basis  of  an  ac- 
tion, it  is  obvious  that  no  recovery  can  be  had  for  injuries  re- 
sulting therefrom.  That  the  result  may  be  nervous  disease, 
blindness,  insanity,  or  even  a  miscarriage,  in  no  way  changes 
the  principle.  These  results  merely  show  the  degree  of  fright, 
or  the  extent  of  the  damages.  The  right  of  action  must  still 
depend  upon  the  question  whether  a  recovery  may  be  had  for 
fright.  If  it  can,  then  an  action  may  be  maintained,  however 
slight  the  injury.  If  not,  then  there  can  be  no  recovery,  no  mat- 
ter how  grave  or  serious  the  consequences.  Therefore  the  logical 
result  of  the  respondent's  concession  would  seem  to  be,  not  only 
that  no  recovery  can  be  had  for  mere  fright,  but  also  that  none 
can  be  had  for  injuries  which  are  the  direct  consequences  of  it. 

If  the  right  of  recovery  in  this  class  of  cases  should  be  once 
established,  it  would  naturally  result  in  a  flood  of  litigation  in 
cases  where  the  injury  complained  of  may  be  easily  feigned 
without  detection,  and  where  the  damages  must  rest  upon  mere 
conjecture  or  speculation.  The  difficulty  which  often  exists  in 
cases  of  alleged  physical  injury,  in  determining  whether  they 
exist,  and,  if  so,  whether  they  were  caused  by  the  negligent 
act  of  the  defendant,  would  not  only  be  greatly  increased,  but 
a  wide  field  would  be  opened  for  fictitious  or  speculative  claims. 
To  establish  such  a  doctrine  would  be  contrary  to  principles  of 
public  policy. 

Moreover,  it  cannot  be  properly  said  that  the  plaintiff's  mis- 
carriage was  the  proximate  result  of  the  defendant's  negligence. 
Proximate  damages  are  such  as  are  the  ordinary  and  natural  re- 
sults of  the  negligence  charged,  and  those  that  are  usual,  and 
may,  therefore,  be  expected.  It  is  quite  obvious  that  the  plaint- 
iff's injuries  do  not  fall  within  the  rule  as  to  proximate  dam- 
ages. The  injuries  to  the  plaintiff  were  plainly  the  result  of  an 
aeidental  or  unusual  combination  of  circumstances,  which  could 
not  have  been  reasonably  anticipated,  and  over  which  the  de- 


COMPENSATOR.Y  DAMAGES.  Ill 

fendant  had  no  control,  and  hence  her  damages  were  too  remote 
to  justify  a  recovery  in  this  action. 

These  considerations  lead  to  the  conclusion  that  no  recovery 
can  be  had  for  injuries  sustained  by  fright  occasioned  by  the 
negligence  of  another,  where  there  is  no  immediate  personal  in- 
jury. The  orders  of  the  General  and  Special  Terms  should  be 
reversed,  and  the  order  of  the  Trial  Term,  granting  a  non-suit 
affirmed,  with  costs. 

All  concur,  except  Haight,  J.,  not  sitting,  and  Vann,  J.,  not 
voting. 

Ordered  accordingly. 


WILKINSON  V.  DOWNTON. 
L.  R.  1897,  2  Q.  B.  57. 

Wright,  J.  In  this  case  the  defendant,  in  the  execution  of 
what  he  seems  to  have  regarded  as  a  practical  joke,  represented 
to  the  plaintiff  that  he  was  charged  by  her  husband  with  a  mes- 
sage to  her  to  the  effect  that  her  husband  was  smashed  up  in  an 
accident,  and  was  lying  at  The  Elms  at  Leytonstone  with  both 
legs  broken,  and  that  she  was  to  go  at  once  in  a  cab  with  two 
pillows  to  fetch  him  home.  All  this  was  false.  The  effect  of 
the  statement  on  the  plaintiff  was  a  violent  shock  to  her  nervous 
system,  producing  vomiting  and  other  more  serious  and  per- 
manent physical  consequences  at  one  time  threatening  her  rea- 
son, and  entailing  weeks  of  suffering  and  incapacity  to  her  as 
well  as  expense  to  her  husband  for  medical  attendance.  These 
consequences  were  not  in  any  way  the  result  of  previous  ill- 
health  or  weakness  of  constitution ;  nor  was  there  any  evidence 
of  predisposition  to  nervous  shock  or  any  other  idiosyncrasy. 

In  addition  to  these  matters  of  substance  there  is  a  small 
claim  of  1  s.  IQi/o  d.  for  the  cost  of  railway  fares  of  persons  sent 
by  the  plaintiff  to  Leytonstone  in  obedience  to  the  pretended 
message.  As  to  this  1  s.  IQi/o  d.  expended  in  railway  fares  on 
the  faith  of  the  defendant's  statement,  I  think  the  case  is  clearly 
within  the  decision  of  Pasley  v.  Freeman,  1789  3  T.  R.  51.  The 
statement  was  a  misrepresentation  intended  to  be  acted  on  to  the 
damage  of  the  plaintiff. 

The  real  question  is  as  to  the  100  1.,  the  greatest  part  of  which 
is  given  as  compensation  for  the  female  plaintiff's  illness  and 
suffering.     It  was  argued  for  her  that  she  is  entitled  to  recover 


112  CLASSIFICATION  OF  DAMAGES. 

this  as  being  damage  caused  by  fraud,  and  therefore  within  the 
doctrine  established  by  Pasley  v.  Freeman,  supra,  and  Lang- 
ridge  V.  Levy,  2  M.  &  W.  519.  I  am  not  sure  that  this  would  not 
be  an  extension  of  that  doctrine,  the  real  ground  of  which  ap- 
pears to  be  that  a  person  who  makes  a  false  statement  intended 
to  be  acted  on  must  make  good  the  damage  naturally  resulting 
from  its  being  acted  on.  Here  there  is  no  injuria  of  that  kind. 
I  think,  however,  that  the  verdict  may  be  svipported  upon 
another  ground.  The  defendant  has,  as  I  assume  for  the  mo- 
ment, wilfully  done  an  act  calculated  to  cause  physical  harm 
to  the  plaintiff — that  is  to  say,  to  infringe  her  legal  right  to 
personal  safety,  and  has  in  fact  thereby  caused  physical  harm 
to  her.  That  proposition  without  more  appears  to  me  to  state  a 
good  cause  of  action,  there  being  no  justification  alleged  for  the 
act.  This  wilful  injuria  is  in  law  malicious,  although  no  ma- 
lijsious  purpose  to  cause  the  harm  which  was  caused  nor  any 
motive  of  spite  is  imputed  to  the  defendant. 

It  remains  to  consider  whether  the  assumptions  involved  in 
the  proposition  are  made  out.  One  question  is  whether  the  de- 
fendant's act  was  so  plainly  calculated  to  produce  some  effect 
of  the  kind  which  was  produced  that  an  intention  to  produce  it 
ought  to  be  imputed  to  the  defendant,  regard  being  had  to  the 
fact  that  the  effect  was  produced  on  a  person  proved  to  be  in 
an  ordinary  state  of  health  and  mind.  I  think  that  it  was.  It 
is  difficult  to  imagine  that  such  a  statement,  made  suddenly 
and  with  apparent  seriousness,  could  fail  to  produce  grave 
effects  under  the  circumstances  upon  any  but  an  exceptionally 
indifferent  person,  and  therefore  an  intention  to  produce  such 
an  effect  must  be  imputed,  and  it  is  no  answer  in  law  to  say 
that  more  hami  was  done  than  was  anticipated,  for  that  is  com- 
monly the  case  with  all  wrongs.  The  other  question  is  whether 
the  effect  was,  to  use  the  ordinary  phrase,  too  remote  to  be  in 
law  regarded  as  a  consequence  for  which  the  defendant  is 
answerable.  Apart  from  authority,  I  should  give  the  same 
answer  and  on  the  same  ground  as  the  last  question,  and  say 
that  it  was  not  too  remote.  "Whether,  as  the  majority  of  the 
House  of  Lords  thought  in  Lynch  v.  Knight,  9  H.  L.  C.  577, 
at  pp.  592,  596,  the  criterion  is  in  asking  what  would  be  the 
natural  effect  on  reasonable  persons,  or  wliether,  as  Lord  Wens- 
leydale  thought  9  H.  L.  C.  577,  at  p.  600.  the  possible  infirmities 
of  human  nature  ought  to  be  recognized,  it  seems  to  me  that  the 


COMPENSATORY    DAMAGES.  113 

connection  between  the  cause  and  the  effect  is  sufficiently  close 
and  complete.  It  is,  however,  necessary  to  consider  two  authori- 
ties which  are  supposed  to  have  laid  down  that  illness  through 
mental  shock  is  a  too  remote  or  unnatural  consequence  of  an 
injuria  to  entitle  the  plaintiff  to  recover  in  a  case  where  dam- 
age is  a  necessary  part  of  the  cause  of  action.  One  is  the  case 
of  Victorian  Railways  Commissioners  v.  Coultas  13  App.  Cas. 
222,  where  it  was  held  in  the  Privy  Council  that  illness  which 
was  the  effect  of  shock  caused  by  fright  was  too  remote  a  con- 
sequence of  a  negligent  act  which  caused  the  fright,  there  be- 
ing no  physical  harm  immediately  caused.  That  decision  was 
treated  in  the  Court  of  Appeals  in  Pugh  v.  London,  Brighton 
and  South  Coast  Ry.  Co.,  1896  2  Q.  B.  248,  as  open  to  question. 
It  is  inconsistent  with  a  decision  in  the  Court  of  Appeal  in  Ire- 
land: see  Bell  v.  Great  Northern  Ry.  Co.  of  Ireland,  1890  26 
L.  R.  Ir.  428,  where  the  Irish  Exchequer  Division  refused  to 
follow  it ;  and  it  has  been  disapproved  in  the  Supreme  Court 
of  New  York:  see  Pollock  on  Torts,  4th  ed.  p.  47  (n).  Nor  is  it 
altogether  in  point,  for  there  was  not  in  that  case  any  element  of 
wilful  wrong ;  nor  perhaps  was  the  illness  so  direct  and  natural 
a  consequence  of  the  defendant's  conduct  as  in  this  case.  On 
these  grounds  it  seems  to  me  that  the  case  of  Victorian  Rail- 
ways Commissioners  v.  Coultas,  supra,  is  not  an  authority  on 
which  this  case  ought  to  be  decided. 

A  more  serious  difficulty  is  the  decision  in  Allsop  v.  Allsop, 
5  H.  &  N.  534,  which  was  approved  by  the  House  of  Lords  in 
Lynch  v.  Knight,  9  H.  L.  C.  577.  In  that  case  it  was  held  by 
Pollock  C.  B.,  INIartin,  Bramwell,  and  Wilde  BB.,  that  illness 
caused  by  a  slanderous  imputation  of  unchastily  in  the  case 
of  a  married  woman  did  not  constitute  such  special  damage  as 
would  sustain  an  action  for  such  a  slander.  That  case,  how- 
ever, appears  to  have  been  decided  on  the  ground  that  in  all 
the  innumerable  actions  for  slander  there  were  no  precedents  for 
alleging  illness  to  be  sufficient  special  damage,  and  that  it  would 
be  of  evil  consequence  to  treat  it  as  sufficient,  because  such  a 
rule  might  lead  to  an  infinity  of  trumpery  or  groundless  actions. 
Neither  of  these  reasons  is  applicable  to  the  present  case.  Nor 
could  such  a  rule  be  adopted  as  of  general  application  without 
results  which  it  would  be  difficult  or  impossible  to  defend.  Sup- 
pose that  a  person  is  in  a  precarious  and  dangerous  condition, 
and  another  person  tells  him  that  his  physician  has  said  that  he 

8 


114  CLASSIFICATION  OF  DAMAGES. 

has  but  a  daj''  to  live.  In  siieh  a  case,  if  death  ensued  from  the 
shock  caused  by  the  false  statement,  1  cannot  doubt  that  at  this 
day  the  ease  might  be  one  of  criminal  homicide,  or  that  if  a 
serious  aggravation  of  illness  ensued  damages  might  be  recov- 
ered. I  think,  however,  that  it  must  be  admitted  that  the  pres- 
ent case  is  without  precedent.  Some  English  decisions — such 
as  Jones  v.  Boyce,  1  Stark.  493;  Wilkins  v.  Day,  12  Q.  B.  D. 
110 ;  Harris  v.  Nobbs,  3  Ex.  D.  268 ;— are  cited  in  Beven  on  Neg- 
ligence as  inconsistent  with  the  decision  in  Victorian  Railways 
Commissioners  v.  Coultas,  13  App.  Cas.  222.  But  I  think  that 
those  cases  are  to  be  explained  on  a  different  ground,  namely, 
that  the  damage  which  immediately  resulted  from  the  act  of 
the  passenger  or  of  the  horse  was  really  the  result,  not  of  that 
act,  but  of  a  fright  which  rendered  that  act  involuntary,  and 
which  therefore  ought  to  be  regarded  as  itself  the  direct  and 
iinmediate  cause  of  the  damage.  In  Smith  v.  Johnson  &  Co., 
unreported,  decided  in  January  last,  Bruce  J.  and  I  held  that 
where  a  man  was  killed  in  the  sight  of  the  plaintiff  by  the  de- 
fendant's negligence,  and  the  plaintiff  became  ill,  not  from  the 
shock  from  fear  of  harm  to  himself,  but  from  the  shock  of  see- 
ing another  person  killed,  this  harm  was  too  remote  a  conse- 
quence of  the  negligence.  But  that  was  a  very  different  case 
from  the  present. 

There  must  be  judgment  for  the  plaintiff  for  100  1.  1  s.  IQi/o. 

Judgment  for  plaintiff. 


CHAPPELL  V.  ELLIS. 

North  Carolina,  1898.     123  N.  C.  259. 

Douglas,  J.  This  is  an  action  to  recover  damages  for  the 
unlawful  seizure  and  detention  of  personal  property,  and  also 
for  mental  suffering  caused  thereby.  The  plaintiff  *  *  * 
alleges  "that  she  is  old  and  infirm,  having  reached  the  age  of 
64  years,  and  has  to  depend  upon  her  own  labor  and  exertion 
for  a  support;  and  after  the  removal  of  the  said  property, 
*  *  *  she  had  nothing  upon  which  to  live,  and  no  home  to 
shelter  her  body;  that  by  the  wrongful  act  of  Thorpe  and  Ellis 
in  taking  from  her  the  said  property,  contrary  to  the  writ  afore- 
said, and  without  authority  in  law,  and  depriving  her  of  the  only 
means  of  support  she  then  had,  in  her  advanced  age  in  life,  she 
has  suffered  greatly  in  body  and  mind  to  her  damage  $500." 


COMPENSATORY   DxVMAGES.  115 

The  doctrine  of  mental  suffering,  or  "mental  anguish,"  as 
we  prefer  to  call  it,  as  indicating  a  higher  degree  of  suffering 
than  arises  from  mere  disappointment  or  annoyance,  contem- 
plates purely  compensatory  damages,  and,  as  far  as  we  are 
aware,  has  never  been  applied  to  cases  like  that  at  bar.  This 
case  would  come  under  the  rule  of  exemplary  punitive,  or  vin- 
dictive damages  as  they  are  variously  denominated.  *  *  * 
The  question  of  exemplary  damages  does  not  appear  to  have 
been  raised  in  the  trial  of  the  action,  as  no  such  issue  or  in- 
struction was  asked  by  either  party.  The  theory  of  the  plaint- 
iff was  the  recovery  of  compensatory  damages  for  mental 
anguish,  under  the  rule  laid  down  in  Young  v.  Telegraph  Co., 
107  N.  C.  370,  and  analogous  cases.  This  rule  cannot  be  ex- 
tended to  the  case  at  bar.  The  plaintiff  is  entitled  to  recover 
all  her  actual  damages  sustained  from  the  wrongful  act  of  the 
defendants,  including  not  only  the  value  of  the  property  not 
returned,  but  also  whatever  damages  may  have  accrued  from 
its  seizure  and  detention.  Furthermore,  she  may  be  allowed 
exemplary  damages,  in  the  discretion  of  the  jury,  if  such  cir- 
cumstances of  aggravation  are  shown  as  would  bring  her  within 
the  rule;  but  her  ease  does  not  come  within  the  doctrine  of 
"mental  anguish."  It  is  true  the  two  doctrines  are  somewhat 
similar,  inasmuch  as  they  recognize  suffering  other  than  physi- 
cal or  pecuniary;  but  they  are  so  widely  distinguished  in  their 
application  that  they  are  universally  recognized  as  distinct 
principles,  wherever  they  are  recognized  at  all. 

It  is  urged  on  behalf  of  the  plaintiff  that  this  case  should  be 
governed  by  the  principles  laid  down  in  Cashion  v.  Telegraph 
Co.,  123  N.  C.  267.  We  see  no  resemblance.  Our  opinion  in 
Cashion's  Case  was  hinged  on  the  solemn  fact  of  death  and  the 
associations  inseparable  from  the  final  severance  of  all  earthly 
ties  by  an  immortal  spirit.  The  anguish  of  a  mother  bending 
over  the  body  of  her  child,  every  lock  of  whose  simny  hair  is 
entwined  with  a  heartstring,  and  kissing  the  cold  lips  that  are 
closed  forever,  cannot  come  within  the  range  of  comparison 
with  any  mental  suffering  caused  by  the  loss  of  a  pig.  We  are 
not  insensible  to  the  pitiable  condition  of  the  plaintiff,  thrown 
upon  the  highway  without  shelter,  and  with  but  little  to  eat ; 
but  we  must  remember  that  her  shelterless  condition,  which 
probably  caused  the  greater  part  of  her  distress,  was  the  result 
of  a  lawful  eviction.     Charity  would  have  dictated  a  different 


116  CLASSIFICATION  OF  DAMAGES. 

course,  but  that  great  virtue  is  not  enforceable  in  a  court  of  law. 

«     *     * 

The  one  universal  law  of  nature  is  that  all  action,  animate 
as  well  as  inanimate,  is  the  result  of  conflicting  forces.  *  *  * 
It  is  so  with  human  action.  Government  itself  is  recognized  as 
springing  from  the  loss  of  personal  liberty  without  license  and 
of  law  without  tyranny,  but  that  its  disturbance  would  lead  to 
anarchy  or  despotism.     *     *     * 

For  the  error  of  his  Honor  in  admitting  evidence  which  tended 
simply  to  show  the  mental  suffering  of  the  plaintiff',  disconnected 
with  any  allegation  of  malice  or  wantonness  on  the  part  of  the 
defendants,  a  new  trial  must  be  granted.  New  trial. 


BRAUN  V.  CRAVEN. 

Illinois,  1898.     175  111.  401. 

Defendant  entered  the  house  of  plaintiff's  sister,  his  tenant, 
to  collect  unpaid  rent.  He  entered  stealthily  and  luibidden. 
Plaintiff  was  sitting  on  the  floor,  and  her  sister  was  packing  up 
her  household  goods.  The  defendant  cried  in  a  loud  and  angry 
voice :  "  I  forbid  you  moving.  If  you  attempt  to  move  I  will 
have  a  constable  here  in  five  minutes."  Plaintiff  averred  that 
she  became  greatly  frightened,  and  that  in  consequence  of  the 
nervous  shock  she  became  ill  with  chorea  or  St.  Vitus  dance.  A 
verdict  in  her  favor  was  rendered  for  $9,000.  The  Appellate 
Court  reversed  the  judgment  thereon,  and  plaintiff  appealed 
therefrom. 

Phillips,  J.  *  *  *  Appellant  relies  upon  Bell  v.  Rail- 
road Co.,  26  L.  R.  Ir.  432,  and  Purcell  v.  Railway  Co.,  48  Minn. 
134.  Both  of  these  cases  fully  sustain  the  contention  of  ap- 
pellant that  w^here  sudden  terror  occasions  a  nervous  shock,  re- 
sulting from  a  negligent  act,  without  impact  or  physical  contact, 
by  which  the  mind  is  affected,  which  may  press  on  the  health 
and  affect  the  physical  organization,  a  cause  of  action  for  neg- 
ligence results.  These  cases  have  the  approval  of  Mr.  Beven 
in  his  work. on  Negligence  (volume  1,  pp.  76-84),  and  of  Mr. 
Sedg^vick,  in  his  work  on  Damages  (8th  Ed.  §861).     *     *     * 

The  courts  in  the  above  cases  seem  to  have  lost  sight  of  the 
only  safeguard  against  imposition  in  cases  arising  from  neg- 
ligence, and  that  is  the  elementary  rule  that,  before  a  plaintiff 
can  recover,  he  must  show  a  damage  naturally  and  reasonably 


COMPENSATORY   DAMAGES.  117 

arising  from  the  negligent  act,  and  reasonably  to  be  anticipated 
as  a  result.  Two  trains  might  be  passing  on  a  double-track  road, 
one  carrying  passengers,  and  the  other  freight,  and,  at  the  mo- 
ment when  the  engine  of  the  freight  train  is  immediately  op- 
posite a  passenger  car,  it  might  become  necessary  to  soimd  a 
whistle,  whose  effect  might  be  to  startle  and  greatly  frighten  a 
nervous  person  in  the  passenger  car ;  and  the  fact  that  a  whistle 
unexpectedly  sounded  would  be  calculated  to  startle  and  frighten 
a  nervous  person,  and  that  such  fright  might  produce  a  nervous 
shock  that  would  cause  physical  injury,  under  the  principle 
announced  in  the  Purcell  and  Bell  Cases,  supra,  would  authorize 
a  recovery.)  That  could  only  be  done,  under  the  authority  of 
those  cases,  by  absolutely  ignoring  the  principle  that  the  injury 
might  be  reasonably  anticipated  as  the  result  of  the  act,  and, 
where  it  cannot  be  so  anticipated,  the  result  is  too  remote.  These 
cases  are  discussed  by  Beven  and  Sedgwick  without  laying 
sufficient  stress  on  this  principle. 

In  our  opinion,  these  authorities,  so  much  relied  on  by  coun- 
sel for  appellant,  are  not  only  against  the  great  weight  of  au- 
thority, but  are  not  sustainable  on  principle.  Appellee,  in  this 
case,  was  on  the  premises  to  collect  rent,  as  he  lawfully  might, 
without  any  knowledge  of  the  nervous  condition  of  appellant; 
and  it  cannot  be  said  that  his  manner,  language,  or  gestures,  or 
declared  purpose  of  preventing  the  removal  of  the  household 
effects  of  his  tenants,  were  naturally  and  reasonably  calculated 
to,  or  that  it  might  be  anticipated  they  would,  produce  the 
peculiar  injury  sustained  by  the  appellant.  It  could  not  have 
been  reasonably  anticipated  by  the  appellee  that  any  injury 
therefrom  could  reasonably  have  resulted.  The  action  is  purely 
one  of  negligence;  and,  if  appellee  could  be  held  liable  under 
this  evidence,  then  any  person  who  might  so  speak  or  act  as  to 
cause  a  stranger  of  peculiar  sensibility,  passing  by,  to  sustain 
a  nervous  shock  productive  of  serious  injury,  might  be  held 
liable.  Thus,  one  whose  very  existence  was  unknown  to  the 
party  guilty  of  so  speaking  and  acting  would  be  given  a  right 
of  recovery.  Terror  or  fright,  even  if  it  results  in  a  nervous 
shock  which  constitutes  a  physical  injury,  does  not  create  a 
liability. 

On  the  ground  of  public  policy  alone,  having  reference  to  the 
dangerous  use  to  be  made  of  such  cause  of  action,  we  hold  that  a 
liability  cannot  exist  consequent  on  mere  fright  or  terror  which 


118  CLASSIFICATION  OF  DAMAGES, 

siiporintliices  nervous  shock.  The  Appellate  Court  held  the 
language  of  the  appellee,  as  disclosed  by  the  evidence,  was  not 
such  as  could  be  held  to  constitute  negligence,  and  that  the  in- 
jury sustained  by  appellant  could  not,  according  to  common 
experience,  be  reasonably  anticipated  to  result  from  such  actions 
and  language.  We  concur  in  that  view,  and  the  judgment  of 
the  Appellate  Court  for  the  First  District  is  affirmed. 

Judgment  affirmed. 

WATSON  V.  DILTS. 
Iowa,  1902.     116  Iowa,  249. 

Sherwin,  J.  The  petition  alleges  that  the  plaintiff  is  a  mar- 
ried woman,  and  that  on  the  9th  day  of  February,  1900,  she 
resided,  with  her  husband  and  child,  on  a  farm  remote  from  the 
traveled  highway ;  that  in  the  nighttime  of  said  day,  at  about 
the  hour  of  11  o'clock,  and  after  she,  her  husband,  and  her  child 
had  gone  to  bed,  the  defendant  wrongfully,  surreptitiously,  and 
stealthily  entered  her  said  home,  and  went  upstairs  to  the  second 
story  thereof,  and,  as  the  plaintiff  then  believed,  to  commit  a 
felony ;  that  the  identity  of  the  defendant  was  not  known  to  her 
at  the  time  she  heard  him  enter  the  house  and  go  upstairs,  and 
that  she  called  to  her  husband  to  follow  him,  which  he  did ;  that 
in  her  apprehension  for  her  OAvn,  her  child's,  and  her  husband's 
life,  from  what  appeared  to  her  a  threatened  danger,  she  followed 
her  husband  up  to  the  room  where  the  defendant  was  found, 
and  where  she  found  him  and  her  husband  in  what  appeared  to 
her  to  be  an  encounter,  and  an  assault  upon  her  husband;  that 
she  became  greatly  terrified  thereat,  and  was  attacked  with  a 
violent  nervous  chill  of  such  severity  that  her  nervous  system 
completely  gave  way,  and  she  became  prostrated,  and  was  con- 
fined to  her  bed  with  threatened  neurosis,  or  paralysis,  and  suf- 
fered great  mental  and  physical  pain  for  nearly  six  weeks,  dur- 
ing all  of  which  time  she  was  confined  to  her  bed,  and  unable  to 
attend  to  her  household  duties.  The  demurrer  to  the  petition 
is  based  on  the  ground  that  the  damages  claimed  are  too  remote 
and  speculative,  and  that  the  plaintiff  seeks  recovery  for  fright 
and  injuries  resulting  therefrom  without  any  physical  injury 
to  her  which  caused  the  fright.  The  petition  alleges  physical 
injuries  resulting  from  the  fright  caused  by  the  defendant,  and 
the  demurrer  thereto  raises  the  question  whether  recovery  may 
be  had  for  physical  injuries  so  caused. 


COMPENSATORY   DAMAGES.  119 

Many  cases  have  been  before  the  courts  in  which  the  ques- 
tion of  a  recovery  for  mental  pain  alone,  and  for  physical  dis- 
ability produced  by  fright,  unaccompanied  by  physical  impact, 
have  been  decided;  and  the  decisions  on  these  questions  are  in 
conflict,  though  it  is  probably  true  that  the  numerical  weight 
of  authority  denies  the  right  of  action.  But  the  cases  so  hold- 
ing are  not  in  harmony  as  to  the  reasons  given  for  denying  the 
right  of  action;  some  of  them  hold  that  the  injury  is  not  the 
proximate  result  of  the  alleged  negligent  or  wrongful  act,  while 
others  refuse  a  recovery  for  the  reason  that  it  is  practically  im- 
possible to  satisfactorily  administer  any  other  rule  and  serve  the 
purposes  of  justice.  Our  attention  has  not,  however,  been  called 
to  any  case  in  which  the  facts  averred  are  precisely  parallel  to 
the  facts  in  this  case,  and  in  no  case  to  which  we  have  been  cited, 
and  in  no  case  which  our  own  investigation  has  discovered,  have 
we  found  facts  alleged  which  so  strongly  condemn  the  unlimited 
application  of  the  rule  contended  for  by  the  appellee  as  do  the 
facts  pleaded  in  the  case  at  bar.  Nor  could  it  be  said,  under 
such  circumstances,  that  the  prostration  resulting  from  the 
fright  so  caused  was  not  the  proximate  or  probable  result  of 
the  defendant's  act.  "Proximate  cause  is  probable  cause;  and 
the  proximate  consequence  of  a  given  act  or  omission,  as  dis- 
tinguished from  a  remote  consequence,  is  one  which  succeeds 
naturally  in  the  ordinary  course  of  things,  and  which,  therefore, 
ought  to  have  been  anticipated  by  the  wrongdoer."  1  Thomp. 
Neg.  156.  It  is  within  the  common  observation  of  all  that  fright 
may,  and  usually  does,  affect  the  nervous  system,  which  is  a  dis- 
tinctive part  of  the  physical  system,  and  controls  the  health  to 
a  very  great  extent,  and  that  an  entirely  sound  body  is  never 
found  with  a  diseased  nervous  organization;  consequently  one 
who  voluntarily  causes  a  diseased  condition  of  the  latter  must 
anticipate  the  consequence  which  follows  it.  The  nerves  being, 
as  a  matter  of  fact,  a  part  of  the  physical  system,  if  they  are 
affected  by  fright  to  such  an  extent  as  to  cause  physical  pain, 
it  seems  to  us  that  the  injury  resulting  therefrom  is  the  direct 
result  of  the  act  producing  the  fright.  [Here  the  learned  justice 
cites  authorities.] 

It  is  undoubtedly  true  that  the  door  should  not  be  thrown 
wide  open  for  trumped-up  claims  on  account  of  injuries  re- 
sulting from  fright,  and  we  do  not  intend  to  so  open  it  in  this 
case.     Each  case  must,  of  necessity,  depend  on  its  own  facts. 


120  CLASSIFICATION  OF  DAMAGES. 

We  held  in  Lee  v.  City  of  Burlington,  113  Iowa,  356,  that  no 
recovery  could  be  had  for  the  death  of  a  horse  alleged  to  have 
been  caused  by  fright,  because  death  therefrom  could  not  be 
anticipated,  and  hence  it  was  not  the  proximate  result  of  the 
defendant's  negligence.  In  Mahoney  v.  Dankwart,  108  Iowa, 
321,  the  question  before  us  was  not  decided.  That  case  was  dis- 
posed of  on  the  facts  there  presented,  and  was  a  case  of  simple 
negligence.  The  reasoning  of  the  Massachusetts  cases  should 
not  be  applied  to  this  case,  for  greater  evil  would  result  from  a 
holding  of  no  actionable  wrong  than  can  possibly  follow  the  rule 
we  announce.  We  do  not  concern  ourselves  with  what  the  trial 
of  this  case  may  disclose,  but  hold  a  cause  of  action  stated  in 
the  petition. 

The  demurrer  should  therefore  have  been  overruled. 

Reversed. 

The  cardinal  principle  in  awarding  damages  is  compensation.  Pain 
Is  not  susceptible  of  exact  compensation  by  any  pecuniary  standard,  but 
is  an  element  to  be  considered.    Musick  v.  Latrobe  Borough,  184  Pa.  375. 

In  eminent  domain,  where  private  property  is  taken  or  injured  by 
the  construction  of  public  works,  the  measure  of  damage  is  the  differ- 
ence in  market  value  of  the  property  before  and  after  the  construc- 
tion.   Shano  v.  Bridge  Co.  189  Pa.  2-15. 

Mental  suffering  cannot  be  allowed  us  an  element  of  damages  in  an 
action  for  personal  injuries,  when  it  is  not  a  part  of  the  actual  injury, 
but  arises  afterwards  from  regret,  disappointment  or  anxiety.  Linn  v. 
Duquesne  Borough,  204  Pa.  551.  Here  a  married  woman  was  perma- 
nently injured  in  her  hands,  causing  her  humiliation. 

Where  a  saloon-keeper  sues  a  gas  company  to  recover  for  refusing  to 
furnish  gas,  there  can  be  no  recovery  for  loss  of  profits,  where  no  books 
of  account  or  evidence  of  profits  were  produced.  Miller  v.  Wilkes-Barre 
Gas  Co.  206  Pa.  254. 

But  damages  are  not  denied,  because  they  are  profits,  where  their  loss 
necessarily  follows  the  breach  of  contract.  Wilson  v.  Wernwag,  66  Atl. 
Rep.  242. 

Damages  can  not  be  estimated  on  the  yield  of  crops  not  planted.    Chi- 
cago v.  Huenerbein,  85  111.  594.     See  also  King  v.  Griffin,  87  S.  W.  Rep.' 
844. 

On  aggravation  of  pain,  see  Tice  v.  Munn,  94  N.  Y.  621.  "Juries  are 
required  to  estimate,  in  the  best  way  they  can,  what  is  a  just  recom- 
pense for  pain  suffered."  Penn.  R.  R.  v.  Allen,  53  Pa.  276 ;  Colo.  Springs 
R.  R.  Co.  V.  Petit,  37  Colo.  326 ;  Cotton  Oil  Co.  v.  Skipper  125  Ga.  368. 

In  case  of  loss  of  an  eye  and  disfigurement  there  can  be  a  recovery  for 
humiliation  and  inconvenience.  Flocking  v.  Windsor  Spring  Co.  131 
Wis.  .532.     See  too  C.  &  M.  E.  R.  R.  v.  Krempel,  103  111.  App.  1. 

If  plaintiff  be  unlawfully  excluded  from  public  school,  the  disgrace 
may  be  an  element  of  damage.    Morrison  v.  Lawrence.  181  Mass.  127. 


COMPENSATORY   DAMAGES.  121 

In  case  of  breach  of  contract,  actual  damages  only,  as  a  rule,  are 
allowed,  rnruh  v  Taylor,  2  PennewiP,  42;  Atchison  R.  R.  v.  Thomas 
70  Kan.  409;  Talbott  v.  W.  Va.  C.  &  P.  Ry.  Co.  42  W.  Va.  560;  see  also 
Chicago,  St.  I..  R.  R.  v.  Butler,  10  Ind.  App.  244. 

A  father  is  entitled  to  be  paid  for  his  loss  of  time  resulting  from  the 
negligent  injury  of  his  minor  son.  Brinkman  v.  Cotton  Oil  Co  118 
La.  835. 

Damages  for  mental  anguish  are  allowed  even  in  cases  of  trespass  on 
land,  if  done  insultingly.     Meagher  v.  Driscoll,  99  Mass.  281. 

Damages  are  allowed  when,  in  the  contemplation  of  the  parties,  the 
breach  would  probably  cause  anguish  and  distress  of  mind.  Renihan  v 
Wright.  125  Ind.  536. 

See  Beaulieu  v.  Great  Northern  Ry.  Co.  114  N.  W.  Rep.  353,  for  a  re- 
view and  discussion  of  all  the  leading  cases  on  mental  anguish  in  the 
Supreme  Court  of  Minnesota  in  December,  1907. 

Loss  of  profits  which  are  reasonably  certain  may  be  made  the  basis 
of  recovery  in  suits  for  breach  of  contract.  Anvil  Mining  Co.  v.  Humble, 
153  U.  S.  549.  See  too  Bratt  v.  Swift,  99  Wis.  579.  For  prospective 
profits,  see  Snow  v.  Pulitzer,  142  N.  Y.  263. 

For  aggravation  of  disease,  hastened  through  defendant's  negligence, 
see  Campbell  v.  Los  Angeles  Traction  Co.  137  Cal.  565;  and  City  of 
Rock  Island  v.  Starkey,  189  111.  527. 

For  expenses  as  an  element  of  damage  see  Mine  Supply  Co.  v.  Colum- 
bia Mining  Co.  48  Oregon,  391;  also  physician's  fee,  Washington  &  G. 
R.  Co.  v.  Patterson,  9  App.  D.  C.  423. 

Loss  of  fees  in  an  office  usurped  by  defendant  can  be  recovered. 
Palmer  v.  Derby,  64  Ohio.  520.  So  also  a  husband  can  recover  for  loss 
of  his  wife's  services,  assistance,  companionship  and  society.  Hutcheis 
V.  Cedar  Rapids  R.  R.  Co.  128  la.  279. 

For  loss  or  diminution  of  earning  power  see  Maryland  D.  &  V.  Ry.  Co. 
V.  Brown.  71  Otl.  Rep.  1005 ;  and  Lewis  v.  Northern  Pacific  Ry.  Co.  36 
Mont.  207 ;  Glenn  v.  Phila.  &  W.  C.  T.  Co.  206  Pa.  135. 

At  common  law  mere  injury  to  the  feelings  or  affections  did  not  con- 
stitute an  independent  basis  for  the  recovery  of  damages.  There  must 
be  an  element  of  injury  or  discomfort,  resulting  from  actual  or  threat- 
ened force.  Summerfield  v.  Western  U.  Tel.  Co.  87  Wis.  1.  The  message 
here  was  "Mother  is  dying.    Come  immediately." 

Nor  can  there  be  a  recovery  for  prospective  mental  anguish.  111.  C. 
R.  R.  V.  Cole,  165  111.  334. 

The  jury  may  consider  the  mortification  and  shame  which  a  lady  en- 
dures because  obliged  to  use  a  crutch;  but  the  jury  may  not  consider 
that  plaintiff  was  engaged  to  be  married  and  the  marriage  had  to  be 
postponed.    Beach  v.  Rapid  Ry.  Co.  119  Mich.  512. 

Worry  in  case  of  an  intelligent  being  can  not  be  overlooked  as  an 
element  of  damages.  Woodward,  ,7..  in  Webb  v.  Yonkers  R.  R.  51  App. 
Div.  N.  Y.  194.     See  also  Kennon  v.  Gilmer,  131  U.  S.  22. 

Humiliation  felt  by  a  married  woman  because  her  hands  were  perma- 
nently crippled  cannot  be  considered  by  the  jury.  Linn  v.  Duquesne 
Boro.  204  Pa.  551. 


122  CLASSIFICATION  OF  DAMAGES. 

Mental  sufferinjr,  past  and  future,  found  to  be  the  necessary  conse- 
quence of  the  loss  of  a  leg  may  be  considered.  McDenuott  v.  Severe, 
202  U.  S.  GOO. 

In  Sinione  v.  R.  I.  Co.  2S  R.  I.  ISG,  1007,  Mr.  Justice  Parkhurst 
examines  all  the  authorities  on  fright  as  an  element  of  damages,  and 
reaches  the  conclusion  that  there  can  be  no  recovery  on  this  ground. 
To  the  same  effect  is  the  decision  of  Rugg,  J.,  in  Sullivan  v.  Old  Colony 
H.  R.  Co.  197  Mass.  512,  1908. 

Prnation  and  inconvenience  are  recognized  as  elements  of  damage. 
Smith  V.  Borough  of  East  Mauch  Chunk,  3  Penn.  Super.  Ct.  495. 

So,  too,  is  the  loss  of  power  to  bear  children.  Normile  v.  Wheeling 
Traction  Co.  57  W.  ^'a.  132. 

Profits  which  are  the  direct  and  immediate  fruits  of  a  contract  can 
be  recovered  as  damages.     Howe  Machine  Co.  v.  Bryson,  44  la.  159. 

"In  an  action  by  a  parent  to  recover  for  loss  occasioned  by  the  injury 
to  his  child,  the  measure  of  damages  is  the  pecuniary  loss  to  him." 
VVoeckner  v.  Erie  Electric  Motor  Co.  1S2  Pa.  182.  There  can  be  no 
recovery  for  nursing  by  members  of  plaintiff's  family ;  this  is  the  ordi- 
nary office  of  affection.    /&. 

If  there  be  a  contract  to  furnish  power  for  a  mill,  the  measure  of 
damages  for  failure  to  perform  is  the  difference  in  rental  value  of  the 
mill  with  the  power  and  without  it.    Witherbee  v.  Meyer,  155  N.  Y.  446. 

Profits  are  to  be  distinguished  from  earnings,  in  case  of  personal  ser- 
vices of  a  boarding-house  keeper.     Wallace  v.  Penn.  R.  R.  195  Pa.  127. 

The  jury  can  consider  the  reasonable  profits  of  a  traveling  theatrical 
troupe  known  as  the  "Eight  Bells  Company."  111.  I.  C.  R.  R.  v.  Byrne, 
205  111.  9. 

The  jury  may  consider  the  average  annual  profit  of  plaintiff's  business 
for  ten  years  before  his  injury  in  estimating  his  earning  power.  Heer 
v.  Warren-Scharf  Asphalt  Paving  Co.  118  Wis.  57. 

But  the  merely  probable  loss  of  profits  of  an  idle  mill  cannot  be 
recovered.     McNeill  v.  Crucible  Steel  Co.  207  Penn.  493. 

The  earning  power  of  plaintiff,  his  health,  industry,  profits  and  capi- 
tal can  be  shown.  Simpson  v.  Penn.  R.  R.  210  Penn.  101.  As  to  earn- 
ing power,  see  also  Wilkinson  v.  North  East  Boro,  215  Pa.  486,  and 
Melone  v.  Sierra  R.  R.  Co.  151  Cal.  113. 

In  Scheukel  v.  Pittsburg  and  B.  Traction  Co.  194  Pa.  182,  the  court 
charged:  "While  you  cannot  undertake  to  pay  her  for  the  injury,  for 
the  pain  and  suffering,  you  have  a  right  to  take  into  consideration  the 
fact  that  her  future  life  will  be  more  or  less  affected  by  the  pain  and 
suffering  incident  to  this  action,  and  for  that  she  ought  to  have  some 
allowance."  Held,  that  this  did  not  permit  the  jury  to  give  damages  for 
pain  and  suffering  "as  a  separate  and  distinct  item." 

The  law  admits  of  compensation  for  future  as  well  as  for  past  pain 
and  suffering.    Wallace  v.  Penn.  R.  R.  219  Pa.  327. 

Every  item  and  eleuient  of  damage  claimed  by  plaintiff  must  be  shown 
by  a  preponderance  of  evidence.  Physicians'  bills  must  thus  be  proved. 
West  Chicago  St.  R.  R.  v.  Carr,  170  111.  484. 

There  may  be  a  recovery  for  medical  fees  incurred  though  not  paid. 
Donk  Bros.  C.  &  C.  Co.  v.  Thil,  228  111.  233. 


EXEMPLARY    DAMAGES.  123 

4. .   Exemplary  Damages. 
MEREST  V.  HARVEY. 

Common  Pleas,  1814.     5  Taunt.  442. 

Trespass  for  forcibly  breaking  and  entering  the  plaintiff's 
.close,  called  Brandon  Road  Breck,  part  of  Longford  Field, 
-and  with  feet  in  walking,  and  with  dogs,  treading  down  and 
spoiling  the  plaintiff's  grass,  and  with  dogs  and  guns  search- 
ing, hunting,  and  beating  for  game  there,  and  doing  other 
wrongs.  The  cause  was  tried  before  Heath,  J.,  at  the  Norfolk 
spring  assizes,  1814.  The  evidence  was,  that  in  September  the 
plaintiff,  a  gentleman  of  fortune,  was  shooting  on  his  own  manor 
and  estate,  in  a  common  field  contiguous  to  the  highway,  when 
the  defendant,  a  banker,  a  magistrate,  and  a  Member  of  Parlia- 
ment, who  had  dined  and  drank  freely  after  taking  the  same 
diversion  of  shooting,  passed  along  the  road  in  his  carriage, 
and  quitting  it,  went  up  to  the  plaintiff  and  told  him  he  would 
join  his  party,  which  the  plaintiff  positively  declined,  inquired 
his  name,  and  gave  him  notice  not  to  sport  on  the  plaintiff's 
land;  but  the  defendant  declared  with  an  oath  that  he  would 
shoot,  and  accordingly  fired  several  times,  upon  the  plaintiff's 
land,  at  the  birds  which  the  plaintiff  found,  proposed  to  borrow 
some  shot  of  the  plaintiff,  when  he  had  exhausted  his  own,  and 
used  very  intemperate  language,  threatening,  in  his  capacity 
of  a  magistrate,  to  commit  the  plaintiff,  and  defying  him  to  bring 
any  action.  The  witness  described  his  conduct  as  being  that 
of  a  drunken  or  insane  person.  The  plaintiff  conducted  himself 
with  the  utmost  coolness  and  propriety.  A  special  jury  found 
a  verdict  for  the  plaintiff  for  the  whole  damages  in  the  declara- 
tion, 500  1. ;  which  verdict 

Blosset,  Sergt.,  now  moved  to  set  aside  for  excess;  for  he  said, 
the  defendant's  conduct  must  have  proceeded  from  intoxication 
or  insanity,  as  it  was  described  by  the  witnesses ;  the  jury  seemed 
to  have  considered,  not  what  they  ought  to  give  as  a  compensa- 
tion for  the  injury  sustained,  but  what  they,  as  lords  of  manors 
in  a  sporting  county,  where  the  jealousy  of  preserving  the  game 
was  carried  to  an  excess,  should  like  to  receive  in  similar  cir- 
cumstances. 

GiBBS,  C.J.  I  wish  to  know,  in  a  case  where  a  man  disregards 
every  principle  which  actuates  the  conduct  of  gentlemen,  what 


124  CLASSIFICATION  OF  DAMAGES. 

is  to  restrain  him  except  large  damages?  To  be  sure,  one  can 
hardly  conceive  worse  conduct  than  this.  What  would  be  said 
to  a  person  in  a  low  situation  of  life,  who  should  behave  him- 
self in  this  manner?  I  do  not  know  upon  what  principle  we 
can  grant  a  rule  in  this  case,  unless  we  were  to  lay  it  down  that 
the  jury  are  not  justified  in  giving  more  than  the  absolute 
pecuniary  damage  that  the  plaintiff  may  sustain.  Suppose  a 
gentleman  has  a  paved  walk  in  his  paddock,  before  his  window 
and  that  a  man  intrudes  and  walks  up  and  down  before  the 
window  of  his  house,  and  looks  in  while  the  owner  is  at  dinner, 
is  the  trespasser  to  be  permitted  to  say,  "Here  is  a  halfpenny 
for  you,  which  is  the  full  extent  of  all  the  mischief  I  have  done  ? '  * 
Would  that  be  a  compensation?  I  cannot  say  that  it  would  be. 
Heath,  J.  I  remember  a  case  where  a  jury  gave  500  1.  dam- 
ages for  merely  knocking  a  man's  hat  off;  and  the  court  re- 
fused a  new  trial.  There  was  not  one  country  gentleman  in  a 
hundred,  who  would  have  behaved  with  the  laudable  and  dig- 
nified coolness  which  this  plaintiff  did.  It  goes  to  prevent  the 
practice  of  duelling,  if  juries  are  permitted  to  punish  insult  by 
exemplary  damages.  Kule   refused. 


GODDARD  V.   GRAND  TRUNK  RAILWAY. 

Maine,  1869.     57  Me.  202. 

Motion  to  set  aside  verdict  as  excessive. 

Walton,  J.  It  appears  in  evidence  that  the  plaintiff  was 
a  passenger  in  the  defendants'  railway  car;  that,  on  request, 
he  surrendered  his  ticket  to  a  brakeman  employed  on  the  train, 
who,  in  the  absence  of  the  conductor,  was  authorized  to  demand 
and  receive  it ;  that  the  brakeman  afterwards  approached  the 
plaintiff,  and,  in  language  coarse,  profane,  and  grossly  insult- 
ing, denied  that  he  had  either  surrendered  or  shown  him  his 
ticket;  that  the  brakeman  called  the  plaintiff  a  liar,  charged 
him  wdth  attempting  to  avoid  the  payment  of  his  fare,  and  with 
having  done  the  same  thing  before,  and  threatened  to  split  his 
head  open  and  spill  his  brains  right  there  on  the  spot ;  that  the 
brakeman  stepped  forward  and  placed  his  foot  upon  the  seat 
on  which  the  plaintiff  was  sitting,  and,  leaning  over  the  plaint- 
iff, brought  his  fist  close  down  to  his  face,  and,  shaking  it  vio- 
lently, told  him  not  to  yip,  if  he  did  he  would  spot  him,  that 


EXEMPLARY   DAMAGES.  125 

he  was  a  damned  liar,  that  he  never  handed  him  his  ticket,  that 
he  did  not  believe  he  paid  his  fare  either  way ;  that  this  assault 
was  continued  some  fifteen  or  twenty  minutes,  and  until  tiie 
whistle  sounded  for  the  next  station;  that  there  were  several 
passengers  present  in  the  car,  some  of  whom  were  ladies,  and 
that  they  were  all  strangers  to  the  plaintiff;  that  the  plaintiff 
was  at  the  time  in  feeble  health,  and  had  been  for  some  time 
under  the  care  of  a  physician,  and  at  the  time  of  the  assault 
was  reclining  languidly  in  his  seat ;  that  he  had  neither  said  nor 
done  anything  to  provoke  the  assault ;  that,  in  fact,  he  had  paid 
his  fare,  had  received  a  ticket,  and  had  surrendered  it  to  this  very 
brakeman,  who  delivered  it  to  the  conductor  only  a  few  minutes 
before,  by  whom  it  was  afterwards  produced  and  identified ;  that 
the  defendants  were  immediately  notified  of  the  misconduct  of 
the  brakeman,  but,  instead  of  discharging  him,  retained  him  in 
his  place;  that  the  brakeman  was  still  in  the  defendants'  em- 
ploy when  the  ease  was  tried,  and  was  present  in  court  during 
the  trial,  but  was  not  called  as  a  witness,  and  no  attempt  was 
made  to  justify  or  excuse  his  conduct.  *  *  *  [Here  the 
learned  justice  cites  authorities.] 

What  is  the  measure  of  relief  which  the  law  secures  to  the 
injured  party;  or,  in  other  w^ords,  can  he  recover  exemplary 
damages?  We  hold  that  he  can.  The  right  of  the  jury  to  give 
exemplary  damages  for  injuries  wantonly,  recklessly,  or  ma- 
liciously inflicted,  is  as  old  as  the  right  of  trial  by  jury  itself; 
and  is  not,  as  many  seem  to  suppose,  an  innovation  upon  the  rules 
of  the  common  law.  It  was  settled  in  England  more  than  a 
century  ago.  *  *  *  [Here  the  learned  justice  cites  Lord 
Camden.] 

But  it  is  said  that  if  the  doctrine  of  exemplary  damages 
must  be  regarded  as  established  in  suits  against  natural  per- 
sons for  their  own  wilful  and  malicious  torts,  it  ought  not  to 
be  applied  to  corporations  for  the  torts  of  their  servants,  es- 
pecially where  the  tort  is  committed  by  a  servant  of  so  low  a 
grade  as  a  brakeman  on  a  railway  train,  and  the  tortious  act 
was  not  directly  nor  impliedly  authorized  nor  ratified  by  the 
corporation  ;  and  several  cases  are  cited  by  the  defendants'  coun- 
sel, in  which  the  courts  seem  to  have  taken  this  view  of  the  law ; 
but  we  have  carefully  examined  these  cases,  and  in  none  of 
them  was  there  any  evidence  that  the  servant  acted  wantonly 
or  maliciously;  they  were  simply  cases  of  mistaken  duty;  and 


12G  CLASSIFICATION  OF  DAMAGES. 

what  theso  same  eourts  would  have  done  if  a  case  of  such  gross 
and  outrageous  insult  had  been  before  them  as  is  now  before 
us,  it  is  impossible  to  say ;  and  long  experience  has  shown  that 
nothing  is  more  dangerous  than  to  rely  upon  the  abstract  reason- 
ing of  eourts,  when  the  cases  before  them  did  not  call  for  the 
application  of  the  doctrines  which  their  reasoning  is  intended 
to  establish. 

We  have  given  to  this  objection  much  consideration,  as  it  was 
our  duty  to  do,  for  the  presiding  judge  declined  to  instruct  the 
jury  that  if  the  acts  and  words  of  the  defendants'  servant  were 
not  directly  nor  impliedly  authorized  nor  ratified  by  the  defend- 
ant, the  plaintiff  could  not  recover  exemplary  damages.  We 
confess-  that  it  seems  to  us  that  there  is  no  class  of  cases  where 
the  doctrine  of  exemplary  damages  can  be  more  beneficially  ap- 
plied than  to  railroad  corporations  in  their  capacity  of  common 
carriers  of  passengers;  and  it  might  as  well  not  be  applied  to 
them  at  all  as  to  limit  its  application  to  cases  where  the  servant 
is  directly  or  impliedly  commanded  by  the  corporation  to  mal- 
treat and  insult  a  passenger,  or  to  cases  where  such  an  act  is 
directly  or  impliedly  ratified ;  for  no  such  cases  will  ever  occur. 
A  corporation  is  an  imaginary  being.  It  has  no  mind  but  the 
mind  of  its  servants ;  it  has  no  voice  but  the  voice  of  its  servants ; 
and  it  has  no  hands  with  which  to  act  but  the  hands  of  its  serv- 
ants. All  its  schemes  of  mischief,  as  well  as  its  schemes  of 
public  enterprise,  are  conceived  by  human  minds  and  executed 
by  human  hands;  and  these  minds  and  hands  are  its  servants' 
minds  and  hands.  All  attempts,  therefore,  to  distinguish  be- 
tween the  guilt  of  the  servant  and  the  guilt  of  the  corporation, 
or  the  malice  of  the  servant  and  the  malice  of  the  corporation, 
or  the  punishment  of  the  servant  and  the  punishment  of  the 
corporation,  is  sheer  nonsense;  and  only  tends  to  confuse  the 
mind  and  confound  the  judgment.  Neither  guilt,  malice,  nor 
suffering  is  predicable  of  this  ideal  existence,  called  a  corpora- 
tion. And  yet  under  cover  of  its  name  and  authority  there 
is,  in  fact,  as  much  wickedness,  and  as  much  that  is  deserving 
of  punishment,  as  can  be  found  anywhere  else.  And  since  these 
ideal  existences  can  neither  be  hung,  imprisoned,  whipped,  or 
put  in  stocks, — since,  in  fact,  no  corrective  influence  can  be 
brought  to  bear  upon  them  except  that  of  pecuniary  loss,— it 
does  seem  to  us  that  the  doctrine  of  exemplary  damage  is  more 
beneficial  in  its  application  to  them  than  in  its  application  to 


EXEMPLARY    DAMAGES.  127 

natural  persons.  If  those  who  are  in  the  habit  of  thinking  that 
it  is  a  terrible  hardship  to  punish  an  innocent  corporation  for  the 
wickedness  of  its  agents  and  servants,  will  for  a  moment  reflect 
upon  the  absurdity  of  their  own  thoughts,  their  anxiety  will  be 
cured.  Careful  engineers  can  be  selected  who  will  not  run  their 
trains  into  open  draws ;  and  careful  baggage  men  can  be  secured, 
who  will  not  handle  and  smash  trunks  and  band-boxes,  as  is  now 
the  imiversal  custom;  and  conductors  and  brakemen  can  be  had 
who  will  not  assault  and  insult  passengers ;  and  if  the  courts  will 
only  let  the  verdicts  of  upright  and  intelligent  juries  alone,  and 
let  the  doctrine  of  exemplary  damages  have  its  legitimate  influ- 
ence, we  predict  these  great  and  growing  evils  will  be  very  much 
lessened,  if  not  entirely  cured.  There  is  but  one  vulnerable  point 
about  these  ideal  existences,  called  corporations ;  and  that  is,  the 
pocket  of  the  moneyed  power  that  is  concealed  behind  them; 
and  if  that  is  reached  they  will  wince.  When  it  is  thoroughly 
understood  that  it  is  not  profitable  to  employ  careless  and  in- 
different agents,  or  reckless  and  insolent  servants,  better  men 
will  take  their  places,  and  not  before. 

It  is  our  judgment,  therefore,  that  actions  against  corpor- 
ations, for  the  wilful  and  malicious  acts  of  their  agents  and 
servants  in  executing  the  business  of  the  corporation,  should  not 
form  exceptions  to  the  rule  allowing  exemplary  damages.  On 
the  contrary,  we  think  this  is  the  very  class  of  cases,  of  all  others, 
where  it  will  do  the  most  good,  and  where  it  is  most  needed. 
And  in  this  conclusion  we  are  sustained  by  several  of  the  ablest 
courts  in  the  country.  *  *  *  On  the  whole,  we  cannot  doubt 
that  it  is  best  for  all  concerned  that  this  verdict  be  allowed  to 
stand. 

Motion  and  exceptions  overruled. 

Tapley,  J.,  did  not  concur  on  the  question  of  damages. 


LAKE  SHORE  &  M.  S.  RAILWAY  v.  PRENTICE. 

Supreme  Court  of  the  United  States,  1893.     147  U.  S.  101. 

]\Ir.  Justice  Gray  after  stating  the  case  delivered  the  opinion 
of  the  court.  The  only  exceptions  taken  to  the  instructions  at 
the  trial,  which  have  been  argued  in  this  court,  are  to  those  on 
the  subject  of  punitive  damages. 

The  single  question  presented  for  our  decision,  therefore,  is 
whether  a  railroad  corporation  can  be  charged  with  punitive 


128  CLASSIFICATION  OF  DAMAGES. 

or  exemplary  damages  for  the  illegal,  wanton,  and  oppressive 
conduct  of  a  conductor  of  one  of  its  trains  towards  a  passenger. 

This  question,  like  others  affecting  the  liability  of  a  railroad 
corporation  as  a  common  carrier  of  goods  or  passengers, — such 
as  its  right  to  contract  for  exemption  from  responsibility  for  its 
own  negligence,  or  its  liability  beyond  its  own  line,  or  its  lia- 
bility to  one  of  its  servants  for  the  act  of  another  person  in  its 
employment, — is  a  question,  not  of  local  law,  but  of  general 
jurisprudence,  upon  which  this  court,  in  the  absence  of  express 
statute  regulating  the  subject,  will  exercise  its  o^\^l  judgment, 
uncontrolled  by  the  decision  of  the  courts  of  the  several  States. 
Railroad  Co.  v.  Lockwood,  17  Wall.  357,  368 ;  Liverpool  &  G.  W. 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  443 ;  Myrick  v.  Rail- 
road Co.,  107  U.  S.  102,  109 ;  Hough  v.  Railway  Co.,  100  U.  S. 
213,  226. 

The  most  distinct  suggestion  of  the  doctrine  of  exemplary  or 
punitive  damages  in  England  before  the  American  Revolution 
is  to  be  found  in  the  remarks  of  Chief  Justice  Pratt  (afterwards 
Lord  Camden)  in  one  of  the  actions  against  the  king's  messen- 
gers for  trespass  and  imprisonment,  under  general  warrants  of 
the  Secretary  of  State,  in  which,  the  plaintiff's  counsel  having 
asserted,  and  the  defendant's  counsel  having  denied,  the  right 
to  recover  "exemplary  damages,"  the  Chief  Justice  instructed 
the  jury  as  follows:  "I  have  formerly  delivered  it  as  my  opinion 
on  another  occasion,  and  I  still  continue  of  the  same  mind,  that 
a  jury  have  it  in  their  poAver  to  give  damages  for  more  than  the 
injury  received.  Damages  are  designed,  not  only  as  a  satisfac- 
tion to  the  injured  person,  but  likewise  as  a  punishment  to  the 
guilty,  to  deter  from  any  such  proceeding  for  the  future,  and  as 
a  proof  of  the  detestation  of  the  jury  to  the  action  itself." 
Wilkes  v.  Wood,  Lofft,  1,  18,  19,  19  Howell,  St.  T.  1153,  1167. 
See,  also,  Huckle  v.  Money,  2  Wils.  205,  207 ;  Sayer,  Dam.  218, 
221.  The  recovery  of  damages,  beyond  compensation  for  the 
injury  received,  by  way  of  punishing  the  guilty,  and  as  an  ex-r 
ample  to  deter  others  from  offending  in  like  manner,  is  here 
clearly  recognized. 

In  this  court  the  doctrine  is  well  settled  that  in  actions  of  tort 
the  jury,  in  addition  to  the  sum  awarded  by  way  of  compensa- 
tion for  the  plaintiff's  injury,  may  award  exemplary,  pimitive, 
or  vindictive  damages,  sometimes  called  "smart  money,"  if  the 
defendant  has  acted  wantonly,  or  oppressively,   or  with  such 


EXEMPLARY    DAMAGED.  129 

malice  as  implies  a  spirit  of  mischief  or  criminal  indifference  to 
civil  obligations ;  but  such  guilty  intention  on  the  part  of  the  de- 
fendant is  required  in  order  to  charge  him  with  exemplary  or 
punitive  damages.  The  Amiable  Nancy,  3  Wheat.  546,  558,  559 ; 
Day  V.  Woodworth,  13  How.  363,  371 ;  Railroad  Co.  v.  Quigley, 
21  How.  202,  213,  214;  Railway  Co.  v.  Arms,  91  U.  S.  489,  493^ 
495;  Railway  Co.  v.  Humes,  115  U.  S.  512,  521;  Barry  v.  Ed- 
munds, 116  U.  S.  550,  562,  563 ;  Railway  Co.  v.  Harris,  122  U.  S. 
597,  609,  610 ;  Railway  Co.  v.  Beckwith,  129  U.  S.  26,  36. 

Exemplary  or  pimitive  damages,  being  awarded,  not  by  way 
of  compensation  to  the  sufferer,  but  by  way  of  punishment  of  the 
offender,  and  as  a  warning  to  others,  can  only  be  awarded  against 
one  who  has  participated  in  the  offence.  A  principal,  therefore, 
though  of  course  liable  to  make  compensation  for  injuries  done 
by  his  agent  within  the  scope  of  his  employment,  cannot  be  held 
liable  for  exemplary  or  punitive  damages,  merely  by  reason  of 
wanton,  oppressive,  or  malicious  intent  on  the  part  of  the  agent. 
This  is  clearly  shown  by  the  judgment  of  this  court  in  the  case 
of  The  Amiable  Nancy,  3  Wheat.  546.  *  *  *  The  learned 
justice  here  reviews  the  case  of  The  Amiable  Nancy  and  con- 
tinues as  follows : 

The  rule  thus  laid  down  is  not  peculiar  to  courts  of  admi- 
ralty ;  for,  as  stated  by  the  same  eminent  judge  two  years  later, 
those  courts  proceed,  in  cases  of  tort,  upon  the  same  principles 
as  courts  of  common  law,  in  allowing  exemplary  damages,  as  well 
as  damages  by  way  of  compensation  or  remuneration  for  ex- 
penses incurred,  or  injuries  or  losses  sustained,  by  the  misconduct 
of  the  other  party.     Manufacturing  Co.  v.  Fiske,  2  Mason,  119, 
121.     In  Keene  v.  Lizardi,  8  La.  26,  33,  Judge  Martin  said:  "It 
is  true,  juries  sometimes  very  properly  give  what  is  called  'smart 
money.'     They  are  often  warranted  in  giving  vindictive  dam- 
ages as  a  punishment  inflicted  for  outrageous  conduct :  but  this 
is  only  justifiable  in  an  action  against  the  wrongdoer,  and  not 
against  persons  who,  on  account  of  their  relation  to  the  offender, 
are  only  consequentially  liable  for  his  acts,  as  the  principal  is 
responsible  for  the  acts  of  his  factor  or  agent."     To  the  same 
effect  are  The  State  Rights,  Crabbe,  42,  47,  48 ;  The  Golden  Gate, 
McAll.  104;  Wardrobe  v.  Stage  Co.,  7  Cal.  118;  Boulard  v. 
Calhoun,  13  La  Ann.  445;  Detroit  Daily  Post  Co.  v.  McArthur, 
16  ]\Iich.  447 ;  Grund  v.  Van  AHeck,  69  111.  478,  481 ;  Becker  v. 
Dupree,  75  111.  167 ;  Rosenkrans  v.  Barker,  115  111.  331 ;  Kirk- 


130  CLASSIFICATION  OF  DAMAGES. 

sey  V.  Jones,  7  Ala.  622,  629;  Pollock  v.  Gantt,  69  Ala.  373,  379; 
Eviston  V.  Cramer,  57  AVis.  570;  Haines  v.  Schultz,  50  N.  J, 
Law,  481 ;  McCarthy  v.  De  Armit,  99  Pa.  St.  63,  72 ;  Clark  v. 
Newsam,  1  Exch.  131,  140;  Clissold  v.  Machell,  26  Upper  Canada 
Q.  B.  422.     *     *     * 

No  doubt,  a  corporation,  like  a  natural  person,  may  be  held 
liable  in  exemplary  or  punitive  damages  for  the  act  of  an  agent 
within  the  scope  of  his  employment,  provided  the  criminal  in- 
tent, necessary  to  warrant  the  imposition  of  such  damages,  is 
brought  home  to  the  corporation.  Railroad  Co.  v.  Quigley,  Rail- 
way Co.  V.  Arms,  and  Railway  Co.  v.  Harris,  above  cited ;  Cald- 
well V.  Steamboat  Co.,  47  N.  Y.  282;  Bell  v.  Railway  Co.,  10 
C.  B..  -(N.  s.)  287,  4  Law  T.  (n.  s.)  293. 

Independently  of  this,  in  the  case  of  a  corporation,  as  of  an 
individual,  if  any  wantonness  or  mischief  on  the  part  of  the 
agent,  acting  within  the  scope  of  his  employment,  causes  addi- 
tional injury  to  the  plaintiff  in  body  or  mind,  the  principal  is,  of 
course,  liable  to  make  compensation  for  the  whole  injury  suf- 
fered. Kennon  v.  Gilmer,  131  U.  S.  22 ;  Meagher  v.  DriscoU, 
99  Mass.  281,  285;  Smith  v.  Holcomb,  Id.  552;  Hawes  v. 
Knowles,  114  Mass.  518 ;  Campbell  v.  Car  Co.,  42  Fed.  Rep.  484. 
#     #     * 

The  law  applicable  to  this  ease  has  been  found  nowhere  bet- 
ter stated  than  by  Mr.  Justice  Brayton,  afterwards  Chief  Justice 
of  Rhode  Island,  in  the  earliest  reported  case  of  the  kind,  in 
which  a  passenger  sued  a  railroad  corporation  for  his  wrongful 
expulsion  from  a  train  by  the  conductor,  and  recovered  a  ver- 
dict but  excepted  to  an  instruction  to  the  jury  that  ' '  punitive  or 
vindictive  damages,  or  smart  money,  were  not  to  be  allowed  as 
against  the  principal,  unless  the  principal  participated  in  the 
wrongful  act  of  the  agent,  expressly  or  impliedly,  by  his  conduct 
authorizing  it  or  approving  it,  either  before  or  after  it  was  com- 
mitted."  This  instruction  was  held  to  be  right,  for  the  fol-*" 
lowing  reasons:  "In  cases  where  punitive  or  exemplary  dam- 
ages have  been  assessed,  it  has  been  done,  upon  evidence  of  such 
wilfulness,  recklessness,  or  wickedness,  on  the  part  of  the  party 
at  fault,  as  amounted  to  criminality,  which  for  the  good  of 
society  and  warning  to  the  individual  ought  to  be  punished.  If 
in  such  cases,  or  in  any  case  of  a  civil  nature,  it  is  the  policy  of 
the  law  to  visit  upon  the  offender  such  exemplary  damages  as 
will  operate  as  punishment,  and  teach  the  lesson  of  caution  to 


EXEMPLARY    DAMAGES.  131 

prevent  a  repetition  of  criminality,  yet  we  do  not  see  how  such 
damages  can  be  allowed,  where  the  principal  is  prosecuted  for 
the  tortious  act  of  his  servant,  unless  there  is  proof  in  the  cause 
to  implicate  the  principal  and  make  him  particeps  criminis  of  his 
agent's  act.  No  man  should  be  punished  for  that  of  which  he 
is  not  guilty."  "Where  the  proof  does  not  implicate  the  prin- 
cipal and,  however  wicked  the  servant  may  have  been,  the  prin- 
cipal neither  expressly  nor  impliedly  authorizes  or  ratifies  the 
act,  and  the  criminality  of  it  is  as  much  against  him  as  against 
any  other  member  of  society,  we  think  it  is  quite  enough  that 
he  shall  be  liable  in  compensatory  damages  for  the  injury  sus- 
tained in  consequence  of  the  wrongful  act  of  a  person  acting 
as  his  servant."     Hagan  v.  Railroad  Co.,  3  R.  I.  88,  91. 

The  like  view  was  expressed  by  the  Court  of  Appeals  of  New 
York  in  an  action  brought  against  a  railroad  corporation  by  a 
passenger  for  injuries  suffered  by  the  neglect  of  a  switchman, 
who  was  intoxicated  at  the  time  of  the  accident.  It  was  held 
that  evidence  that  the  switchman  was  a  man  of  intemperate 
habits,  which  was  kno^^^l  to  the  agent  of  the  company  having 
the  power  to  employ  and  discharge  him  and  other  subordinates, 
was  competent  to  support  a  claim  for  exemplary  damages,  but 
that  a  direction  to  the  jury  in  general  terms  that  in  awarding 
damages  they  might  add  to  full  compensation  for  the  injury 
"such  sum  for  exemplary  damages  as  the  case  calls  for, 
depending  in  a  great  measure,  of  course,  upon  the  conduct 
of  the  defendant,"  entitled  the  defendant  to  a  new  trial;  and 
Chief  Justice  Church,  delivering  the  unanimous  judgment  of  the 
court,  stated  the  rule  as  follows:  "For  injuries  by  the  negligence 
of  a  servant  while  engaged  in  the  business  of  the  master,  within 
the  scope  of  his  employment,  the  latter  is  liable  for  compensatory 
damages ;  but  for  such  negligence,  however  gross  or  culpable,  he 
is  not  liable  to  be  punished  in  punitive  damages  unless  he  is  also 
chargeable  with  gross  misconduct.  Such  misconduct  may  be 
established  by  showing  that  the  act  of  the  servant  was  author- 
ized or  ratified,  or  that  the  master  employed  or  retained  the 
servant,  knowing  that  he  was  incompetent,  or,  from  bad  habits, 
unfit  for  the  position  he  occupied.  Something  more  than  ordi- 
nary negligence  is  requisite ;  it  must  be  reckless,  and  of  a  crim- 
inal nature,  and  clearly  established.  Corporations  may  incur 
this  liability  as  well  as  private  persons.  If  a  railroad  company, 
for  instance,  knowingly  and  wantonly  employs  a  drunken  en- 


132  CLASSIFICATION  OF  DAMAGES. 

ginecr  or  switchman,  or  retains  one  after  knowledge  of  his  habits 
is  clearly  brought  home  to  the  company,  or  to  a  superintending 
agent  authorized  to  employ  and  discharge  him,  and  injury  occurs 
by  reason  of  such  habits,  the  company  may  and  ought  to  be 
amenable  to  the  severest  rule  of  damages;  but  I  am  not  aware 
of  any  principle  which  permits  a  jury  to  award  exemplary  dam- 
ages in  a  case  which  does  not  come  up  to  this  standard,  or  to 
graduate  the  amount  of  such  damages  by  their  views  of  the 
proprietj^  of  the  conduct  of  the  defendant,  unless  such  conduct 
is  of  the  character  before  specified."  Cleghorn  v.  Railroad  Co., 
56  N.  Y.  44,  47,  48. 

Similar  decisions  denying  upon  like  grounds  the  liability  of 
railroad  companies  and  other  corporations,  sought  to  be  charged 
with  punitive  damages  for  the  wanton  or  oppressive  acts  of  their 
agents  or  servants,  not  participated  in  or  ratified  by  the  corpor- 
ation, have  been  made  by  the  courts  of  New  Jersey,  Pennsyl- 
vania. Delaware,  Michigan,  Wisconsin,  California,  Louisiana, 
Alabama,  Texas,  and  West  Virginia. 

It  must  be  admitted  that  there  is  a  wide  divergence  in  the 
decisions  of  the  State  courts  upon  this  question,  and  that  cor- 
porations have  been  held  liable  for  such  damages  under  similar 
circumstances  in  New  Hampshire,  in  Maine,  and  in  many  of 
the  Western  and  Southern  States.  But  of  the  three  leading 
cases  on  that  side  of  the  question,  Hopkins  v.  Railroad  Co.,  36 
N.  H.  9,  can  hardly  be  reconciled  with  the  later  decisions  in  Fay 
V.  Parker,  53  N.  H.  342,  and  Bixby  v.  Dunlap,  56  N.  H.  456 ; 
and  in  Goddard  v.  Railway  Co.,  57  I\Iaine,  202,  228,  and  Rail- 
way Co.  V.  Dunn,  19  Ohio  St.  162,  590,  there  were  strong  dis- 
senting opinions.  In  many,  if  not  most,  of  the  other  cases,  either 
corporations  were  put  upon  different  grounds  in  this  respect 
from  other  principals,  or  else  the  distinction  between  imputing 
to  the  corporation  such  wrongful  act  and  intent  as  would  render 
it  liable  to  make  compensation  to  the  person  injured,  and  im- 
puting to  the  corporation  the  intent  necessary  to  be  established 
in  order  to  subject  it  to  examplary  damages  by  way  of  punish- 
ment, was  overlooked  or  disregarded. 

IMost  of  the  cases  on  both  sides  of  the  question,  not  specifically 
cited  above,  are  collected  in  1  Sedgwick  on  Damages  (8th  ed.)  § 
380.  * 

In  the  case  at  bar,  the  plaintii¥  does  not  appear  to  have  eon- 
tended  at  the  trial,  or  to  have  introduced  any  evidence  tending 


EXEMPIiARY    DAMAGES.  133 

to  show,  that  the  conductor  was  known  to  the  defendant  to  be  an 
unsuitable  person  in  any  respect,  or  that  the  defendant  in  any 
way  participated  in,  approved,  or  ratified  his  treatment  of  the 
plaintiff;  nor  did  the  instructions  given  to  the  jury  require 
them  to  be  satisfied  of  any  such  fact  before  awarding  punitive 
damages ;  but  the  only  fact  which  they  were  required  to  find,  in 
order  to  support  a  claim  for  punitive  damages  against  the  cor- 
poration, was  that  the  conductor's  illegal  conduct  was  wanton 
and  oppressive.  For  this  error,  as  we  cannot  know  how  much  of 
the  verdict  was  intended  by  the  jury  as  a  compensation  for  the 
plaintiff's  injury,  and  how  much  by  way  of  punishing  the  cor- 
poration for  an  intent  in  which  it  had  no  part,  the  judgment 
must  be  reversed,  and  the  case  remanded  to  the  Circuit  Court, 
with  direction  to  set  aside  the  verdict,  and  to  order  a  new  trial. 

Mr.  Justice  Field,  Mr.  Justice  Harland  and  Mr.  Justice 
Lamar  took  no  part  in  this  decision. 


MAISENBACKER  v.  THE  SOCIETY  CONCORDIA. 

Connecticut,  1899.     71  Conn.  369. 

Action  to  recover  damages  for  assault  and  battery  and  wrong- 
ful ejection  of  plaintiff  from  a  dance  hall.  Verdict  for  plaintiff. 
Defendant  appeals. 

Hall,  J.  The  complaint  alleges,  in  substance,  that  the  plain- 
tiff, having  contracted  with  and  paid  the  defendant  for  the  priv- 
ilege of  dancing  at  a  certain  ball,  was,  by  the  forcible  acts  of  the 
defendant's  agents,  prevented  from  exercising  her  said  right, 
and  was  thereby  caused  pain  and  damage.  The  trial  court  cor- 
rectly charged  the  jury  that  the  complaint  described  two  causes 
of  action, — one  for  personal  injury,  and  the  other  for  a  breach 
of  contract.  Under  the  averments  of  the  complaint,  the  plaintiff 
would  have  been  entitled  to  a  verdict  upon  proof  either  that  she 
was  forcibly  prevented  from  dancing,  as  alleged,  or  that  the  de- 
fendant's agents,  without  using  force,  unlawfully  deprived  her 
of  the  privilege  which  was  granted  to  her  by  her  contract  with 
the  defendant.  We  have  no  occasion  to  decide  whether  these  two 
causes  of  action  should  have  been  stated  in  separate  counts. 
Several  causes  of  action  may  be  stated  in  a  single  count,  when 
such  causes  of  action  are  not  separate  and  distinct  from  each 
other;  that  is,  separable  from  each  other  "by  some  distinct  line 
of  demarkation."     Craft  Refrigerating  Maeh.  Co.  v.  Quinnipiac 


134  CLASSIFICATION  OP^  DAMAGES. 

Brewing  Co.,  63  Conn.  563.  The  defendant,  not  having  demur- 
red to  the  coniphiint,  has  waived  the  question  whetlier  the  two 
causes  of  action  were  improperly  joined  in  one  count.  Practice 
Book,  p.  17,  rule  4,  §  13. 

Apparently  no  question  was  made  at  the  trial  but  that  under 
the  pleadings  the  plaintiff,  upon  proof  that  the  defendant's 
agent  forcibly  prevented  her  from  dancing,  became  entitled  to  a 
verdict  for  a  sum  sufficient  to  indemnify  her  for  the  actual  in- 
juries she  sustained,  and  which  were  the  direct  and  natural 
consequences  of  the  wrongful  act  complained  of.  The  complaint 
alleges  that,  in  consequence  of  the  assault,  the  plaintiff  was  de- 
prived of  the  privileges  of  the  ball,  that  she  suffered  physical 
and  mental  pain  and  anguish,  and  lost  her  earnings  in  the  trade 
at  which  she  had  been  employed.  The  court  instructed  the  jury 
that,  in  determining  the  amount  of  compensatory  damages  to  be 
awarded  the  plaintiff,  they  might  take  into  consideration  the 
indignity  she  had  suffered  by  an  assault  in  so  public  a  place,  the 
mental  as  well  as  the  physical  suffering  which  it  caused  her, 
and  such  loss  as  had  been  proved  she  had  thereby  sustained  from 
inability  to  work  at  her  trade.  ' '  All  the  attending  acts  and  cir- 
cumstances which  accompany  and  give  character  to  the  assault 
may  be  given  in  evidence  to  enhance  the  damages."  Brzezinski 
V.  Tierney,  60  Conn.  62.  Mental  as  well  as  physical  suffering, 
when  properly  alleged,  may  be  proved  as  an  element  of  actual 
damage,  and  as  naturally  and  directly  resulting  from  an  as- 
sault of  the  character  described  in  the  complaint.  Gibney  v. 
Lewis,  68  Conn.  393 ;  Seger  v.  Town  of  Barkhamsted,  22  Conn. 
298;  Masters  v.  Town  of  Warren,  27  Conn.  299.  The  defend- 
ant has  no  cause  to  complain  of  the  charge  of  the  court  with  ref- 
erence to  the  elements  which  go  to  make  up  compensatory  dam- 
ages. 

The  complaint  alleges  that  the  defendant's  agent,  in  commit- 
ting the  assault,  "addressed  the  plaintiff  in  loud,  threatening, 
and  insulting  language, ' '  and  that  the  assault  upon  the  plaintiff 
was  "committed  in  a  gross,  wanton,  and  reckless  manner,  and 
with  intent  to"  injure  the  plaintiff.  The  defendant,  in  effect, 
requested  the  court  to  charge  the  jury  that  the  defendant  society 
could  not,  upon  the  proof  presented,  be  held  liable  in  exemplary 
damages.  The  court  did  not  comply  with  this  resquest,  but  in- 
structed the  jury  that,  in  ease  they  found  that  a  battery  had 
been  inflicted  upon  the  plaintiff  by  the  defendant's  agent,  "want- 


EXEMPLARY   DAMAGES.  135 

only,  maliciously,  or  in  wanton  disregard  of  the  plaintiff's 
rights,"  they  might  add,  to  that  sum  which  they  should  find 
sufficient  to  compensate  the  plaintiff  for  her  injuries,  "a  sum 
as  exemplary  or  punitive  damages,"  and  might  award  her  as 
punitive  damages  such  sum  as  the  jury,  from  their  ''knowledge 
of  the  course  of  business  in  the  courts  of  law  in  this  state," 
should  find  "to  be  her  expenses  in  conducting  this  trial,"  less 
the  taxable  costs  which  she  would  recover.  The  jury  returned 
a  verdict  for  the  plaintiff  for  $300.  We  have  not  the  evidence 
in  the  case  before  us,  but  from  the  finding  of  facts,  and  from  the 
charge  of  the  court  stating  the  claims  of  the  parties  as  to  the 
character  and  extent  of  the  plaintiff's  injuries,  we  think  the 
jury  may,  under  such  instruction,  have  included  in  their  verdict, 
as  an  element  of  damages,  the  expenses  incurred  by  the  plaintiff 
in  conducting  her  trial,  less  the  taxable  costs;  and,  unless  this 
is  a  case  in  which  such  expenses  could  lawfully  be  recovered, 
the  charge  of  the  court  was  incorrect,  and  a  new  trial  should  be 
granted. 

That  a  plaintiff  may,  in  an  action  for  an  assault  and  battery, 
and  in  certain  other  actions  of  tort,  recover  certain  damages 
which  are  not  "compensatory,"  within  the  technical  and  legal 
meaning  of  that  word,  but  which  are  awarded  wnth  the  view  of 
punishing  the  defendant  for  this  wrongful  act,  has  been  settled 
in  this  state  beyond  question  by  a  large  number  of  decisions,  ex- 
tending from  Linsley  v.  Bushnell,  15  Conn.  225,  to  Gibney  v. 
LcAvis,  6S  Conn.  392.  The  cases  in  which  punitive  damages  may 
be  awarded  are  only  those  actions  of  tort  ' '  founded  on  the  mali- 
cious or  wanton  misconduct  of  the  defendant,"  or  upon  "such 
culpable  neglect  of  the  defendant"  as  is  "tantamount  to  mali- 
cious or  wanton  misconduct."  St.  Peter's  Church  v.  Beach,  26 
Conn.  355 ;  Welch  v.  Durand,  36  Conn.  182 ;  Burr  v.  Town  of 
Plymouth,  48  Conn.  460.  And  private  corporations,  as  well  as 
individuals,  may  for  their  owna  acts  become  liable  in  punitive 
damages.  Sedg.  Dam.  §  379 ;  Merrills  v.  Manufacturing  Co., 
10  Conn.  384;  Murphy  v.  Railroad  Co.,  29  Conn.  496.  The  ex- 
penses of  litigation  are  not  an  element  of  the  damages  termed  in 
law  "actual"  or  "compensatory"  damages.  "They  are  not  the 
natural  and  proximate  consequence  of  the  wrongful  act,"  and 
they  can  only  be  considered  by  the  jury  in  those  cases  in  which 
exemplary  damages  may  be  awarded.  St.  Peter's  Church  v. 
Beach,  supra;  Piatt  v.  BrowTi,  30  Conn.  336 ;  Mason  v.  Hawes,  52 


136  CLASSIFICATION  OF  DAMAGES. 

Conn.  12;  Gibney  v.  Lewis,  supra.  Such  expenses  in  excess  of 
taxable  costs,  in  cases  in  which  they  may  be  considered,  limit  the 
amount  of  punitive  damages  which  can  be  awarded.  Wilson  v. 
Granby,  47  Conn.  59;  Burr  v.  Town  of  Plymouth,  supra.  In 
cases  where  they  may  be  considered  it  is  not  usual  to  prove  the 
expenses  of  litigation  actually  incurred,  but  the  court  may  admit 
relevant  evidence  for  that  purpose.  Bennett  v.  Gibbons,  55 
Conn.  450. 

The  case  before  us,  as  shown  by  the  record,  is  not  one  in  which 
the  defendant  society  could  be  held  liable  in  punitive  damages. 
The  defendant  is  a  corporation.  The  alleged  assault  was  com- 
mitted by  a  floor  manager  ' '  appointed  by  the  defendant  to  have 
the  regulation  and  charge  of  the  dancing"  at  a  ball  given  by  the 
defendant.  The  assault  which  the  court  instructed  the  jury 
would,  if  found  to  have  been  committed,  and  to  have  been  in- 
flicted wantonly  and  maliciously,  entitle  the  plaintiff  to  exemp- 
lary damages,  was  the  putting  of  his  hand  by  one  of  the  floor 
managers  upon  the  plaintiff's  shoulder,  "rudely,  insolently,  or 
angrily,"  and  while  she  was  upon  the  ballroom  floor,  "at  the 
same  time  telling  her  that  she  could  not  dance  there,  and  that 
she  was  not  a  fit  person  to  be  there."  If  these  facts  are  suffi- 
cient to  show  that  the  act  of  the  agent  was  malicious  or  wanton, 
they  do  not  prove  that  the  principal  in  any  way  participated  in 
such  malicious  or  wanton  misconduct.  As  its  agent  was  acting 
within  the  scope  of  his  employment,  the  law  compels  the  defend- 
ant to  compensate  the  plaintiff  for  the  injuries  she  has  sustained 
from  the  wrongful  acts  of  the  agent,  but  it  does  not  punish  the 
defendant  for  the  malicious  purpose  or  intent  which  prompted 
the  agent's  conduct.  To  render  the  principal  liable  in  exemp- 
lary damages  for  the  acts  of  his  agent  in  the  course  of  his  em- 
ployment, but  done  with  such  malicious  intent,  some  misconduct 
of  the  former  beyond  that  which  the  law  implies  from  the  mere 
relation  of  principal  and  agent  must  be  showTi.  It  is  not 
claimed  that  the  defendant  society  directed  the  floor  manager  to 
remove  the  plaintiff,  or  to  act  towards  any  person  in  the  man- 
ner in  which  it  is  alleged  he  did,  or  that  the  defendant  has  since 
adopted  or  approved  of  his  action.  In  Cleghorn  v.  Railroad  Co., 
56  N.  Y.  44,  Chief  Justice  Church,  in  delivering  the  opinion  of 
the  court,  says:  "For  injuries  hy  the  negligence  of  a  servant 
while  engaged  in  the  business  of  the  master  within  the  scope  of 
his  employment,  the  latter  is  liable  for  compensatory  damages; 


EXEMPLARY   DAMAGES.  137 

but  for  such  negligence,  however,  gross  or  culpable,  he  is  not  lia- 
ble to  be  punished  in  punitive  damages,  unless  he  is  also  charge- 
able with  gross  misconduct."  In  the  case  of  Railway  Co.  v. 
Prentice,  147  U.  S.  101,  in  which  this  question  is  very  fully 
discussed,  and  the  decisions  in  both  the  federal  and  state  courts 
upon  this  subject  reviewed,  Mr.  Justice  Gray,  speaking  for  the 
court,  laid  down  the  rule,  as  deducible  from  the  authorities,  that 
"guilty  intention  upon  the  part  of  the  defendant  is  required  in 
order  to  charge  him  with  exemplary  or  punitive  damages." 
"Exemplary  or  punitive  damages,"  said  he,  "being  awarded, 
not  by  way  of  compensation,  but  by  way  of  punishment  of  the 
offender,  and  as  a  warning  to  others,  can  only  be  awarded 
against  one  who  has  participated  in  the  offense.  A  principal, 
therefore,  though,  of  course,  liable  to  make  compensation  for 
injuries  done  by  his  agent  within  the  scope  of  his  employment, 
cannot  be  held  liable  for  exemplary  or  punitive  damages  merely 
by  reason  of  wanton,  oppressive,  or  malicious  intent  upon  the 
part  of  the  agent."  In  1  Sedg.  Dam.  (8th  Ed.)  §§  378,  380, 
the  author,  after  citing  very  fully  the  conflicting  authorities  in 
different  jurisdictions  upon  this  question,  says:  "It  is  the  better 
opinion  that  no  exemplary  damages  can  be  had  against  a  prin- 
cipal for  the  tort  of  an  agent  or  servant,  unless  the  defendant 
expressly  authorized  the  act  as  it  was  performed,  or  approved  it, 
or  was  grossly  negligent  in  hiring  the  agent  or  servant. "  In  the 
case  at  bar,  as  it  appears  by  the  record  before  us,  we  think  com- 
pensation for  the  injury  suffered  was  the  full  measure  of  the  de- 
fendant's responsibility,  and  that  there  was  error  in  charging 
the  jury  that  they  might  award  the  plaintiff  as  punitive  dam- 
ages the  expenses  of  trial  in  excess  of  taxable  costs,  and  in  not 
charging  upon  the  subject  of  punitive  damages,  as  requested  by 
defendant.    Error,  and  new  trial.     The  other  judges  concurred. 


KRUG  V.  PITASS. 

New  York.  1900.  162  N.  Y.  154. 
This  is  an  action  to  recover  damages  alleged  to  have  hecn 
caused  by  the  publication  of  an  article  concerning  the  plaintiff 
in  a  newspaper  published  in  the  Polish  language  at  the  city  of 
Buffalo,  known  as  the  "Pole  in  America."  The  defendant  Pi- 
tass  was  the  proprietor  of  said  newspaper,  the  defendant  Slisz 
the  editor,   and  the  article   in  question  was  a  communication 


138  CLASSIFICATION  OF  DAMAGES. 

signed  by  the  other  defendant,  Smeja.  The  jury  rendered  a 
verdict  in  favor  of  the  plaintiff  for  $G,250,  and,  the  judgment 
entered  thereon  having  been  affirmed  in  the  Appellate  Division 
by  a  divided  vote,  the  defendants  appeal  to  this  court. 

Vann,  J.  The  article  in  question,  according  to  either  trans- 
lation, was  libelous  upon  its  face  because  it  charged  the  plain- 
tiiT  with  a  want  of  professional  ability  and  integrity,  and  thus 
endangered  the  gain  derived  from  his  vocation.  Cruikshank  v. 
Gordon,  118  N.  Y.  178;  Mattice  v.  AVilcox,  147  N.  Y.  624;  Flood 
on  Libel  &  Slander,  114.  Referring  to  him  as  a  physician,  it  called 
him  a  blockhead  or  fool,  and  appealed  to  all  the  Poles  in  Buf- 
falo not  to  intrust  themselves  or  their  families  to  his  professional 
care  when  he  so  hated  them  that  he  would  not  help  them  if  he 
could.  *  *  *  The  article  was  actionable  without  proof  of 
any  damages,  for  the  law  imputes  malice  to  the  defendants,  and 
presumes  that  damages  were  sustained  by  the  plaintiff  from  the 
bare  act  of  publication.     (Citing  authorities.) 

While  the  plaintiff  was  thus  entitled  to  recover  on  account  of 
implied  malice,  his  damages,  without  further  proof,  would  be 
limited  to  such  an  amount  as  would  fairly  compensate  him  for 
the  actual  injury  sustained.  In  order  to  recover  punitive  dam- 
ages also,  it  was  necessary  for  him  to  furnish  evidence  of  express 
malice,  or  malice  in  fact,  as  distinguished  from  malice  implied. 
Implied  malice,  in  an  action  for  libel  consists  in  publishing,  with- 
out justifiable  cause,  that  which  is  injurious  to  the  character  of 
another.  It  is  a  presumption  drawn  by  the  law  from  the  simple 
fact  of  publication.  Express  malice  consists  in  such  a  publica- 
tion from  ill  will,  or  some  wrongful  motive,  implying  a  willing- 
ness or  intent  to  injure,  in  addition  to  the  intent  to  do  the  un- 
lawful act.  It  requires  affirmative  proof,  beyond  the  act  of 
publishing,  indicating  ill  feeling,  or  such  want  of  feeling  as  to 
impute  a  bad  motive.  It  does  not  become  an  issue,  when  the 
article  is  libelous  on  its  face,  unless  punitive  damages  are  claimed. 

In  order  to  establish  express  malice,  the  plaintiff  was  allowed 
to  show,  as  against  all  the  defendants,  that  several  years  prior 
to  the  publication  the  defendant  Pitass  had  made  remarks  about 
him  expressing  contempt  and  ill  will.  There  was  no  connection 
between  these  remarks  and  the  other  defendants,  who  neither 
heard  them  nor  ever  heard  of  them,  so  far  as  appears.  It  is  un- 
disputed that  Pitass  knew  nothing  about  the  article  until  some 
time  after  it  had  been  published.     He  did  not,  directly  or  indi- 


EXEMPLARY    DAMAGES.  139 

rectly,  cause  or  consent  to  its  publication.  He  was  liable  only 
because  he  o\^Tied  the  newspaper,  and  was  responsible  for  the 
acts  of  his  agents  in  publishing  it.  His  previous  statements  did 
not  cause  the  publication,  nor  have  any  effect  upon  it.  Be- 
tween those  statements  and  the  fact  of  publication  there  was  no 
connection,  and  no  relation  of  cause  and  effect.  They  did  not 
enter  into,  or  become  part  of,  or  have  any  bearing  upon  the 
wrong  of  which  the  plaintiff  complains.  As  the  article  would 
have  been  published  if  they  had  not  been  made,  they  were  im- 
material, for  they  did  not  touch  the  wrongful  act,  and  could  not 
aggravate  the  damages. 

Punitive  damages,  which  are  in  excess  of  the  actual  loss,  are 
allowed  where  the  wrong  is  aggravated  by  evil  motives  in  order 
to  punish  the  wrongdoer  for  his  misconduct,  and  furnish  a  whole- 
some example.  As  was  said  by  the  Supreme  Court  of  the 
United  States  in  an  important  case:  "Whenever  the  injury  com- 
plained of  has  been  inflicted  maliciously  or  wantonly,  and  with 
circumstances  of  contumely  or  indignity,  the  jury  are  not  lim- 
ited to  the  ascertainment  of  a  simple  compensation  for  the  wrong 
committed  against  the  aggrieved  person.  But  the  malice  spoken 
of  in  this  rule  is  not  merely  the  doing  of  an  unlawful  or  injur- 
ious act.  The  work  implies  that  the  act  complained  of  was  con- 
ceived in  the  spirit  of  mischief,  or  of  criminal  indifference  to 
civil  obligations."    Railroad  Co.  v.  Quigley,  62  U.  S.  202. 

Did  Pitass  inflict  the  injury  upon  the  plaintiff  maliciously, 
when  he  knew  nothing  about  it  at  the  time  it  was  done,  and  was 
only  liable  as  o\\Tier  of  the  newspaper?  Did  he,  "in  a  spirit 
of  mischief,"  conceive  the  act  done  by  his  agent  without  his 
knowledge?  Could  his  malicious  remarks,  made  in  1S90,  leap 
forward,  and,  without  knowledge  or  action  on  his  part,  become 
blended  with  the  act  of  his  agent  in  189-4?  Did  his  agent,  the 
editor,  conceive  the  act  "in  a  spirit  of  mischief,"  which  never 
entered  his  o\^ti  mind,  but  existed  at  a  remote  period  in  the 
mind  of  another?  Did  the  writer  of  the  article  act  under  the 
influence  of  words  neither  spoken  in  his  presence  nor  communi- 
cated to  him  in  any  way? 

Tn  an  action  for  a  tort  there  can  be  no  recovery  of  punitive 
damages  for  general  malice,  but  only  for  such  particular  malice 
as  existed  when  the  tortious  act  was  done,  and  which  had  some 
influence  in  causing  it  to  be  done.  *  *  *  ]\Ioreover,  the  mal- 
ice of  one  defendant  cannot  be  imputed  to  another  without  con- 


140  CLASSIFICATION  OF  DAMAGES. 

noetinp:  proof.  "If  two  be  sued,  the  motive  of  one  must  not  be 
allowed  to  aggravate  the  damages  against  the  other.  Nor  should 
the  improper  motive  of  an  agent  be  matter  of  aggravation 
against  his  principal."  Bigelow's  Odgers  on  Libel  and  Slander, 
296.     *     *     * 

Neither  the  author  nor  editor  was  a  party  to  the  malice  of  the 
publisher,  and  his  malice  did  no  harm,  because  it  had  no  effect 
upon  the  result.  While  he  was  responsible  for  their  acts,  they 
were  not  responsible  for  his  motives,  of  which  they  had  no 
knowledge.  He  was  not  responsible  for  his  motives  in  connec- 
tion with  their  acts,  because  there  was  no  connection.  The 
malice  proved  in  this  case  did  not  cause  the  conduct  complained 
of.  The  one  guilty  of  malice  did  not  commit  the  wrong,  except 
through  an  agent,  who  knew  nothing  about  the  malicious  feel- 
ings of  his  principal.  The  principal  was  not  liable  for  general 
malice,  but  only  for  such  particular  malice  as  was  connected  with 
the  publication.  The  agent  was  not  liable  for  the  general  mal- 
ice of  his  principal,  of  which  he  knew  nothing,  and  which  had 
no  connection  with  the  wrong  done.  The  writer  of  the  article 
was  not  liable  for  the  malice  of  another,  of  which  he  had  never 
heard,  and  which  had  no  influence  upon  the  wrongful  act.  Yet 
the  general  malice  of  one  out  of  three  defendants,  although  it 
had  no  connection  with  the  wrong,  has,  as  it  must  be  presumed, 
entered  into  the  verdict  of  sixty-two  hundred  and  fifty  dollars 
against  all,  in  violation  of  the  rights  of  each. 

As  the  malice  proved  neither  caused  nor  prompted  the  publi- 
cation of  the  libel,  the  judgment  must  be  reversed  and  a  new  trial 
granted,  with  costs  to  abide  the  event.     All  concur. 

Judgment  reversed,  &c. 


HAYWOOD  V.  HAMM. 

Connecticut,  1904.     77  Conn.  158. 

Action  to  recover  damages  for  injury  by  runaway  horse. 

Baldwin,  J.  The  plaintiff,  while  driving  upon  a  city  street, 
was  struck  and  injured  by  a  runaway  horse  owned  by  the  de- 
fendant. In  his  complaint  he  alleged  that  the  horse  had  been 
carelessly  left  unhitched,  though  he  had,  and  the  defendant  knew 
he  had,  a  habit  of  running  away.  To  prove  this  habit,  he  was 
allowed  to  introduce  evidence  of  declarations  made  shortly  after 
the  accident  by  the  defendant's  son,  who  had  been  in  charge  of 


EXEMPLARY   DAMAGES,  141 

the  horse  that  day,  and  had  left  him  standing  in  the  street  by 
the  curbstone  just  before  he  ran  away.  In  this  there  was  error. 
One  authorized  to  drive  another's  horse  is  not  thereby  made  his 
agent  for  the  purpose  of  making  admissions  as  to  the  habits  of 
the  animal.  Nor  were  the  declarations  part  of  the  res  gestce 
pertaining  to  the  accident.  They  were  subsequent  in  time,  and 
narrative  in  character. 

The  defendant  was  called  as  a  witness  by  the  plaintiff,  and 
testi^ed  that  his  son  was  in  charge  of  the  horse  on  the  day  in 
question,  and  was  using  it  to  attend  to  some  of  his  ovm  business, 
and  probably  some  of  his  (the  father's),  also.  This  was  cor- 
rectly held  to  be  sufficient  prima  facie  proof  of  agency.  Hoyt 
V,  Danbury,  69  Conn.  3-41. 

The  trial  court  properly  instructed  the  jury  that,  to  justify  a 
verdict  for  the  plaintiff,  it  was  unnecessary^  for  him  to  prove  that 
,  the  horse  had  a  habit  of  running  away,  which  was  known  to  the 
defendant.  It  was  enough  if,  whatever  its  disposition  and  hab- 
its, it  had  been  left  in  the  street,  unhitched,  under  circum- 
stances Avhich,  in  the  opinion  of  the  jury-,  all  things  considered, 
made  that  a  negligent  act  on  the  part  of  one  whom  the  defend- 
ant had  made  his  agent  in  the  matter.  This  was  substantially 
what  the  jury  were  told. 

They  were,  however,  also  instructed  that  if  they  were  satisfied 
that  the  horse  had  the  habit  of  running  away,  and  the  defend- 
ant knew  it,  and  it  was  negligently  left  unhitched  or  insecurely 
fastened  by  the  defendant's  agent,  exemplary  damages  could  be 
awarded.  This  was  erroneous.  Exemplary  damages  are  given 
as  a  punishment  for  an  offense,  and  only  against  those  who  par- 
ticipated in  the  offense.  The  tort  charged  in  the  complaint  was 
that  of  the  agent,  in  leaving  the  horse  imhitehed.  This  act  the 
defendant  never  expressly  authorized,  approved,  or  ratified.  Nor 
did  he  do  or  say  anything,  so  far  as  appears,  which  could  have 
led  the  agent  to  suppose  that  it  was  authorized.  He  therefore 
committed  no  offense  which  could  be  the  proper  subject  of  such 
a  punishment.  Maisenbacker  v.  Society  Concordia,  71  Conn. 
369. 

The  verdict  was  one  which,  under  the  charge,  the  jury  would 
well  return,  and  so  the  motion  to  set  it  aside  was  properly  over- 
ruled. 

There  is  error,  and  a  new  trial  is  ordered.  The  other  judges 
concurred. 


142  CLASSIFICATION  OF  DAMAGES. 

For  wanton  and  intentional  violation  of  the  rights  of  others,  or  under 
circunistances  of  aixj^ravation  or  opi)r(;ssion.  as  in  wantonly  destroying 
shade-trees,  exemplary  daniaj^es  may  be  recovered.  Sperry  v.  Seidel, 
218  I'a.  1(5;  Hulins  v.  Henderson  IGl  I'a.  053. 

Where  a  newspaper  article  is  libellous  per  se,  the  law  presumes 
malice,  and  may  award  exemplary  damages.  Tingley  v.  Times-Mirror 
Co.  151  Cal.  1. 

See  also,  for  decisions  on  exemplary  damages,  Scott  v.  Donald,  165 
U.  S.  5S;  Boydan  v.  Haberstumpf,  129  Mich.  140;  Bullock  v.  D.  L.  &  W. 
R.  R.  Co.  61  N.  J.  I..  550;  Palmer  v.  Phila.  B.  &  W.  R.  R.  Co.  218  Pa. 
114;  Haviland  v.  Chase,  116  Mich.  216;  Southern  R.  R.  Co.  v.  Jordan, 
129  Ga.  665;  Baxter  v.  Campbell,  17  S.  D.  475;  Stroud  v.  Smith  (Penn. 
1900),  45  Atl.  Rep.  329;  AVells  v.  Boston  &  M.  R.  R.  Co.  (Vermont, 
1909),  71  Atl.  Rep.  1103. 

Exemplary  damages  have  been  regarded  by  some  courts  as  wrong  in 
theory".  See  Murphy  v.  I[obbs,  7  Col.,  541.  Still  they  are  allowed  in  cer- 
tain cases  of  tort.  IVr'Carthy  v.  Niskern,  22  Minn.  90.  They  are  in  the 
nature  of  punishment.  Milwaukee  R.  R.  v.  Arms,  91  U.  S.  489;  Voltz 
V.  Blackmar,  64  N.  Y.  444 ;  Johnson  v.  Allen,  100  N.  C.  131. 

Some  courts  hold  that  such  damages  are  awarded,  not  as  punishment, 
but  as  compensation.  Fay  v.  Parker,  53  N.  H.  342 ;  Bixby  v.  Dunlap, 
56  N.  H.  456.  The  doctrine  is  discussed  generally  in  Wilson  v.  Boweu, 
64  Mich.  141 ;  Hawes  v.  Knowles,  114  Mass.  518 ;  and  in  Bank  of  Com- 
merce V.  Goos,  23  L.  R.  A.  190. 


5.     Excessive  Damages. 
HUCKLE  V.  MONEY. 

Common  Pleas,  1763.    2  Wilson,  205. 

Pratt,  Lord  Chief  Justice.  In  all  motions  for  new  trials,  it 
is  as  absolutely  necessary  for  the  courts  to  enter  into  the  nature 
of  the  cause,  the  evidence,  facts,  and  circumstances  of  the  case, 
as  for  a  jury ;  the  law  has  not  laid  down  what  shall  be  the  meas- 
use  of  damages  in  actions  of  tort ;  the  measure  is  vague  and  un- 
certain, depending  upon  a  vast  variety  of  causes,  facts,  and 
circumstances ;  torts  or  injuries  which  may  be  done  by  one  man 
to  another  are  infinite ;  in  cases  of  criminal  conversation, 
battery,  imprisonment,  slander,  malicious  prosecutions,  &c., 
the  state,  degree,  quality,  trade,  or  profession  of  the  party  in- 
jured, as  well  as  of  the  person  who  did  the  injury,  must  be,  and 
generally  are,  considered  by  a  jury  in  giving  damages ;  the  few 
cases  to  be  found  in  the  books  of  new  trials  for  torts  show  that 


EXCESSIVE   DAMAGES.  143 

courts  of  justice  have  most  commonly  set  their  faces  against 
them;  and  the  courts  interfering  in  these  cases  would  be  laying 
aside  juries;  before  the  time  of  granting  new  trials,  there  is  no 
instance  that  the  judges  ever  intermeddled  with  the  damages. 

I  shall  now  state  the  nature  of  this  case,  as  it  appeared  upon 
the  evidence  at  the  trial;  a  warrant  was  granted  by  Lord  Hal- 
ifax, Secretary  of  State,  directed  to  four  messengers,  to  appre- 
hend and  seize  the  printers  and  publishers  of  a  paper  called  the 
North  Briton,  number  45,  without  any  information  or  charge 
laid  before  the  Secretary  of  State,  previous  to  the  granting 
thereof,  and  without  naming  any  person  whatsoever  in  the  war- 
rant; Carrington,  the  first  of  the  messengers  to  whom  the  war- 
rant was  directed,  from  some  private  intelligence  he  had  got  that 
Leech  was  the  printer  of  the  North  Briton,  number  45,  directed 
the  defendant  to  execute  the  warrant  upon  the  plaintiff  (one 
'of  Leech's  journeymen),  and  took  him  into  custody  for  about  six 
hours,  and  during  that  time  treated  him  well;  the  personal  in- 
jury done  to  him  was  very  small,  so  that  if  the  jury  had  been 
confined  by  their  oath  to  consider  the  mere  personal  injury  only, 
perhaps  £20  damages  would  have  been  thought  damages  suf- 
ficient; but  the  small  injury  done  to  the  plaintiff,  or  the  incon- 
siderableness  of  his  station  and  rank  in  life,  did  not  appear  to 
the  jury  in  that  striking  light,  in  which  the  great  point  of  law 
touching  the  liberty  of  the  subject  appeared  to  them  at  the  trial; 
they  saw  a  magistrate  over  all  the  king's  subjects  exercising 
arbitrary  power,  violating  Magna  Charta,  and  attempting  to 
destroy  the  liberty  of  the  kingdom,  by  insisting  upon  the  legality 
of  this  general  warrant  before  them;  they  heard  the  king's 
counsel,  and  saw  the  Solicitor  of  the  Treasury,  endeavoring  to 
support  and  maintain  the  legality  of  the  warrant  in  a  tyran- 
nical and  severe  manner ;  these  are  the  ideas  which  struck  the 
jury  on  the  trial,  and  I  think  they  have  done  right  in  giving 
exemplary  damages;  to  enter  a  man's  house  by  virtue  of  a 
nameless  warrant,  in  order  to  procure  evidence,  is  worse  than 
the  Spanish  Inquisition  ;  a  law  under  which  no  Englishman  would 
wish  to  live  an  hour;  it  was  a  most  daring  public  attack  made 
upon  the  liberty  of  the  subject:  I  thought  that  the  29th  chapter 
of  Magna  Charta,  Nullus  liber  homo  capiatur  vel  im.prisonetur, 
&c.,  nee  super  eum  ihimiis,  &c.,  nisi  per  legale  judicium  parium 
suorum  vel  per  legem  terrae,  &c.,  which  is  pointed  against  arbi- 
trary power,  was  violated.     I  cannot  say  what  damages  I  should 


144  CLASSIFICATION  OF  DAMAGES. 

have  given  if  I  had  been  upon  the  jury ;  but  I  directed  and  told 
them  they  were  not  bound  to  any  certain  damages,  against  the 
Solicitor-General 's  argument.  Upon  the  whole,  I  am  of  opinion 
the  damages  are  not  excessive;  and  that  it  is  very  dangerous  for 
the  judges  to  intermeddle  in  damages  for  torts;  it  must  be  a 
glaring  case  indeed  of  outrageous  damages  in  a  tort,  and  which 
all  mankind  at  tirst  blush  must  think  so,  to  induce  a  court  to 
grant  a  new  trial  for  excessive  damages. 
Barthurst  J.  concurs.     Per  Curiam. 

New  trial  refused. 


PETERSON  V.  WESTERN  UNION  TELEGRAPH  CO. 

Minnesota,  1896.    65  Minn.  18. 

Start,  C.  J.  This  is  an  action  for  libel,  in  which  the  plaintiff 
recovered  a  verdict  for  $5,200,  and  the  defendant  appealed  from 
an  order  denying  its  motion  for  a  new  trial. 

The  defendant  on  January  19,  1893,  received  at  its  office  in 
New  Ulm,  from  Albert  Blanchard,  a  message  for  transmission 
over  its  telegraph  line  to  St.  Paul,  which  reads  thus:  "New  Ulm, 
1-19,  1893.  To  S.  D.  Peterson,  care  Windsor,  St.  Paul, 
Minn.:  Slippery  Sam,  your  name  is  pants.  [Signed]  Many 
Republicans."  The  New  Ulm  operator  sent  the  message  over 
the  wires  to  St.  Paul,  where  it  was  taken  from  the  wire  by  the 
operator,  and  delivered  to  the  plaintiff  in  a  sealed  envelope  bear- 
ing his  address  as  stated  in  the  message.     *     *     * 

3.  The  ilamages  in  this  case  are  so  excessive  as  to  conclusively 
show  that  the  verdict  w^as  the  result  of  passion  and  prejudice. 
Courts  should  interfere  with  an  assessment  of  damages  by  a  jury 
wnth  great  caution,  and  sustain  the  verdict  unless  it  appears  that 
it  was  the  result  of  passion  or  prejudice.  But  the  verdict  in  this 
case  admits  of  no  defense.  As  correctly  stated  by  the  trial  court 
in  its  instructions  to  the  jury,  the  sole  publication  of  the  libel  in 
this  case  by  the  defendant  was  in  making  it  known  to  its  own 
agent  at  St.  Paul,  and  the  damages  of  the  plaintiff  were  limited 
to  such  a.s  he  sustained  by  reason  of  the  publication  to  such 
agent.  In  view  of  the  fact  that  such  agent  could  not  disclose 
the  contents  of  the  libel  without  becoming  a  criminal  and  expos- 
ing himself  to  serious  punishment,  and  that  there  is  no  evidence 
to  justify  the  inference  that  the  contents  of  the  message  ever 
reached  the  public,  except  through  the  plaintiff,  a  verdict  as- 


EXCESSIVE   DAMAGES.  145 

sessing  his  damages  at  $5,200  is  simply  farcical.  It  can  only  be 
accounted  for  on  the  groimd  that  it  was  the  result  of  passion  or 
prejudice. 

The  trial  court  seems  to  have  regarded  the  damages  so  exces- 
sive as  to  justify  a  new  trial,  except  for  the  fact  that  this  is  the 
second  verdict  in  the  case,  and  that  one  reason  for  setting  aside 
the  former  verdict  was  that  the  damages  were  excessive.  As  a 
rule  the  court  will  not  set  aside  a  second  verdict,  *  *  ''^  but 
where  *  *  *  the  verdict  is  controlled  by  no  reason,  sup- 
ported by  no  justice,  and  is  manifestly  the  result  of  passion  and 
prejudice,  it  is  the  duty  of  the  court  to  set  it  aside.  *  *  * 
Order  reversed  and  a  new  trial  granted. 

The  cases  show  that  the  court  has  aurliority  to  set  aside  a  verdict  for 
excessive  damages ;  and  also  for  inadequate  damages,  and  to  award  a 
new  trial,  unless  plaintiff  accepts  a  reduction.  Chamberlain  v.  Lake 
^Shore  R.  R.  122  Mich.  477. 

Where  a  libel  charged  plaintiff  w  ith  1  eiug  a  swindler,  a  forger  and  a 
thief,  and  the  evidence  shows  that  the  jiublication  was  wholly  false  and 
that  the  newspaper  took  no  pains  to  verify  the  article,  held  that  a 
verdict  for  $1,000  was  not  excessive.    Graybill  v.  De  Young,  140  Cal.  323. 

Whei'e  a  married  woman  with  a  nursing  babe  was  wrongfully  ejected 
from  a  train,  without  money  and  without  baggage,  held,  that  a  verdict 
of  $500  was  not  excessive.    Marlow  v.  S.  P.  151  Cal.  383. 

In  Cherbuliez  v.  Parsons,  111  N.  Y.  Supp.  516,  Mr.  Justice  Stapleton 
held  that  where  a  bright,  active  and  intelligent  woman,  forty  years  of 
age,  was  injured  and  became  insane  and  lost  her  earning  power,  a  judg- 
ment for  $12,000  was  justified. 

See  also  Predmore  v.  Consumers'  Light  &  Power  Co.,  91  N.  Y.  Supp. 
lis,  a  case  of  a  death  of  an  electrician  due  to  defendant's  negligence; 
also  Cassasa  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.  95  N.  Y.  Supp  648,  where  a 
waiter  upset  a  tray  of  food  upon  a  lady's  gown ;  Olwell  v.  Spoors,  126 
Wis.  905,  where  a  fe:nale  clerk,  unmarried,  lost  an  eye  and  recovered 
$12,000,  which  the  court  reduced  to  $6,000 ;  Walker  v.  Simmons  Mfg  Co. 
131  Wis.  554,  where  plaintilf  lost  three  fingers,  and  a  judgment  for 
$5,000  was  sustained;  Vogel  v.  McAuliffe,  31  Atl.  Rep.  1,  where  defend- 
ant destroyed  a  furnace  in  a  homestead  where  there  was  sickness,  and 
a  verdict  for  $400  was  sustained;  Galloway  v.  C.  M.  &  St.  P.  R.  R.  57 
N.  W.  Rep.  1058,  where  $10,000  was  held  not  too  much  for  traumatic 
neurosis ;  Strand  v.  G.  N.  R.  Co.  Ill  N.  W.  Rep.  958,  where  $30,000  was 
held  excessive  in  case  of  a  young  man,  26  years  old,  badly  burned,  but 
whose  mental  faculties  remained  unimpaired ;  Bull  v.  C.  R.  I.  &  P.  R.  R. 
116  N.  W.  Rep.  299.  where  $680  was  held  not  an  excessive  judgment  for 
destroying  .35  acres  of  oats,  85  acres  of  corn  and  some  live  stock ;  Hock- 
ing V.  Windsor  Spring  Co.  Ill  N.  W.  Rep.  685,  where  $5,000  was  allowed 
for  the  loss  of  an  eye;  Carpenter  v.  City  of  Red  Cloud,  S9  N.  W.  Rep. 

10 


146  CLASSIFICATION  OF  DAMAGES. 

G37,  where  $1  damages  was  set  aside  as  inadequate  wliere  a  laborer  was 
incapacitated  for  a  year,  and  spent  $30  on  doctors ;  Cobb  v.  Simon,  97 
N.  W.  Rep.  27G,  where  $1,000  was  allowed  for  a  false  imprisonment 
where  there  was  no  violence  and  no  public  disgrace.  See  also  Sliuger- 
land  V.  East  Jersey  Water  Co.  58  N.  J.  L.  412. 

The  unanimous  opinion  of  the  U.  S.  Sup.  Ct.  in  Railway  Co.  v  Pren- 
tice. 147  U.  S.  101,  constitutes  an  exhaustive  digest  upon  the  question 
whether  a  princii)al  can  be  charged  with  punitive  damages  for  the 
wanton  and  malicious  conduct  of  a  servant.  "The  right,  to  award  such 
damages  rests  upon  a  single  ground, — wrongful  motive."  Haines  v. 
Schultz,  50  N.  J.  L.  4S1.  Punitive  damages  cannot  be  awarded  where 
the  wrong  was  done, — as  in  case  of  a  libel,  without  defendant's  knowl- 
edge. Publishing  Co.  v.  Kahn,  59  N.  J.  L.  218.  So  where  plaintiff  was 
ejected  from  a  train  without  unnecessary  violence,  held,  that  punitive 
damages  could  not  be  awarded.  Fohrman  v.  Consolidated  Traction 
Co.  63  N.  J.  L.  393. 

"The  term  'compensatory  damages'  covers  all  loss  recoverable  as 
matter  of  right.  It  includes  all  damage  for  which  the  law  gives  com- 
pensation, and  that  gives  rise  to  the  term  'compensatory  damages.' 
'Compensatory  damages'  and  'actual  damages'  are  synonymous  terms. 
Pcuniary  loss  is  an  actual  damage;  so  is  bodily  pain  and  suffering." 
Gatzow  V.  Buening.  106  Wis.  1. 

"Smart  money  may  only  be  given  for  malice."  Mr.  Justice  Gaynor  in 
Magagnos  v.  B.  H.  R.  128  App.  Div.  N.  Y,  182.  See  also  W.  U.  Tel. 
Co.  V.  Smith,  64  Ohio,  106. 

See  Warner  v.  Southern  Pacific  Co.  113  Cal.  104,  where  a  passenger 
was  wrongfully  ejected  and  $5,000  was  held  excessive;  Roche  v.  Reding- 
ton,  125  Cal.  174,  where  $4,000  was  held  not  excessive  for  breaking  the 
thigh-bone  of  a  street-sweeper  in,  San  Francisco;  Rueping  v.  N.  W.  Ry. 
Co.  116  Wis.  625,  where  $2,500  was  held  sufficient  for  breaking  the  leg 
of  a  man  45  years  old  who  soon  recovered  so  as  to  attend  to  business  as 
before.  In  this  last  case  all  the  precedents  are  carefully  examined.  In 
Bonneau  v.  North  Shore  R.  R.  152  Cal.  406,  a  verdict  of  $7,500  was 
sustained  where  plaintiff  was  injured  by  derailment  of  a  car  which  was 
precipitated  into  a  creek. 


6.     Inadequate  Damages. 
ROBINSON  V.  TOWN  OF  WAUPACA. 

Wisconsin,  1890.     77  Wis.  544. 

This  is  an  action  to  recover  damages  for  personal  injuries 
to  the  plaintiff,  alleged  to  have  been  caused  by  a  defective 
highway  in  the  defendant  town.  The  plaintiff  was  riding  with 
her  husband  in  a  vehicle  on  two  wheels,  called  a  "dog-cart," 


INADEQUATE    DAMAGES.  147 

drawn  by  one  horse.  The  trial  resulted  in  a  verdict  for  the 
plaintiff,  assessing  her  damages  at  $167.  The  plaintiff  moved 
for  a  new  trial,  mainly  on  the  ground  that  the  damages  so  as- 
sessed are  inadequte  to  compensate  her  for  the  injury  she  proved 
she  sustained.  The  motion  was  denied,  and  judgment  was  there- 
upon entered  for  the  plaintiff,  pursuant  to  the  verdict  from 
which  judgment  she  appeals  to  this  court. 

Lyon,  j_  *  *  *  Were  the  damages  which  the  jury 
awarded  the  plaintiff  so  inadequate  to  compensate  her  for  the 
injuries  she  sustained  that  it  was  the  duty  of  the  Circuit  Court 
to  set  aside  the  verdict  for  that  reason?  That  the  court  may, 
and  in  a  proper  case  should  set  aside  a  verdict  for  inadequacy 
of  damages  and  award  a  new  trial,  is  not  questioned.  This 
court  so  held  in  Emmons  v.  Sheldon,  26  Wis.  648,  and  Whit- 
ney V.  Milwaukee,  65  Wis.  409.  But,  to  justify  the  interfer- 
ence of  the  court  with  the  verdict,  it  must  appear  from  the 
testimony  that  the  damages  awarded  are  so  grossly  dispropor- 
tionate to  the  injury  that  in  awarding  them  the  jury  must  have 
been  influenced  by  a  perverted  judgment.  The  court  was  able 
thus  to  characterize  the  verdict  in  Emmons  v.  Sheldon,  for  the 
damages  there  awarded  were  but  $5  (which  charged  the  plain- 
tiff with  the  costs  of  the  action),  although  it  was  proved  that 
the  plaintiff  suffered  a  most  serious  bodily  injury.  There  seems 
to  have  been  no  controversy  as  to  the  extent  of  such  injury. 
And  so  in  Whitney  v.  Milwaukee,  the  undisputed  evidence 
proved  that  the  plaintiff  was  so  seriously  injured  that  the  dam- 
ages awarded  by  the  jury  therefor  were  grossly  inadequate 
compensation,  and  so  small  that  the  plaintiff  was  chargeable 
with  the  costs,  which  exceeded  the  damages  awarded.  This 
court  was  able  to  say  that  the  verdict  was  perverse,  and  that 
(quoting  from  the  opinion  delivered  by  Mr.  Justice  Orton) 
"such  a  verdict  is  trifling  with  a  case  in  court  and  public  justice, 
and  unworthy  of  twelve  good  and  lawful  men,  and  is  justly 
calculated  to  cast  odiom  on  the  jury  system  and  jury  trials." 

We  adhere  to  the  rule  established  in  those  cases.  Hence  the 
question  is,  Does  the  testimony  bring  this  case  within  the  rule? 
In  the  consideration  of  this  question  we  must  assume  that  the 
jury  found  every  fact  going  to  mitigate  or  reduce  the  damages 
which  they  could  properly  find  from  the  proofs.  The  testimony 
tends  to  show  that  the  plaintiff  was  to  some  extent  an  invalid 
before  she  was  injured,  and  that  the  pain  and  disability  she 


148  CLASSIFICATION  OF  DAMAGES. 

has  suffered  sinee  the  injury  should,  in  part  at  least,  be  at- 
tributed to  previous  ill-health.  Then  the  circumstances  of  the 
injur}^  and  her  condition  presently  thereafter  tend  to  show 
that  the  injury  was  not  so  severe  as  claimed.  There  is  con- 
siderable testimony  of  the  above  character,  and  we  think  it  suffi- 
cient materially  to  mitigate  her  claim  for  damages.  Under  the 
testimony,  therefore,  there  is  a  wide  margin  for  the  jury  in 
assessing  damages.  Probably  a  verdict  for  a  much  larger  sum 
could  have  been  held  not  excessive.  Perhaps,  if  the  plaintiff's 
testimony  as  to  the  extent  of  her  injuries  stood  alone,  it  ought 
to  be  held  that  the  damages  are  inadequate.  But  in  view  of 
all  the  testimony,  and  of  the  fact  that  the  verdict  has  success- 
fully passed  the  scrutiny  of  the  learned  Circuit  judge,  we  do 
not  feel  warranted  in  saying  that  it  is  a  perverse  verdict.  Hence, 
although  we  might  have  been  better  satisfied  had  a  somewhat 
greater  sum  been  awarded,  we  are  not  at  liberty  to  disturb  the 
verdict. 

By    the    Court.— The    judgment    of   the    Circuit    Court    is 
affirmed. 


SAMUELS  V.  NEW  YORK  CITY  RY.  CO. 

New  York,  1906.  52  Misc.  137. 
Davis,  J.  This  is  an  appeal  by  plaintiff  from  a  judgment  for 
$5  rendered  in  his  favor  by  the  court  without  a  jury,  and  from 
an  order  denying  his  motion  for  a  new  trial.  The  main  ground 
of  the  motion  for  a  new  trial  was  the  insufficiency  of  the  dam- 
ages awarded.  The  action  was  brought  for  breach  of  contract  of 
carriage.  The  plaintiff  testified  that  on  April  26,  1906,  he 
boarded  defendant's  car  at  the  corner  of  Clinton  and  Stanton 
streets.  The  car  went  north  on  Avenue  A  as  far  as  Fourteenth 
street,  and  then  proceeded  west  through  Fourteenth  street. 
Plaintiff  paid  his  fare  and  received  a  transfer.  At  Fourth  avenue 
the  conductor  demanded  fare  from  the  plaintiff.  The  plaintiff 
told  the  conductor  that  he  had  already  paid  one  fare,  and  re- 
fused to  pay  again.  He  also  said  that  he  would  show  his  trans- 
fer. The  conductor  thereupon  applied  vile  names  to  the  plaintiff, 
and.  as  the  plaintiff  was  trying  to  get  his  transfer  from  his 
pocket  to  exhibit  it,  the  conductor  got  hold  of  the  plaintiff  by  the 
coat  and  pulled  him  from  the  center  of  the  car  to  the  front, 
punched  him.  and  Avhile  the  plaintiff  was  holding  on  to  the  front 


INADEQUATE   DAMAGES.  149 

of  the  car,  he  punched  him  in  the  face.  The  car  was  full  of  peo- 
ple at  the  time.  The  plaintiff  was  corroborated  in  the  main  by 
two  witnesses.     The  defendant  offered  no  testimony. 

We  think  the  damages  awarded  in  this  case  were  altogether 
insufficient.  If  the  plaintiff's  story  is  true,  he  was  grossly  as- 
saulted, wantonly  insulted,  and  wrongfully  ejected  from  the  de- 
fendant 's  car  by  its  servant.  The  court  below  believed  his  story. 
It  was  not  contradicted.  On  this  evidence  the  defendant  clearly 
committed  a  breach  of  its  contract  of  carriage  for  which  the 
plaintiff  is  entitled  to  recover  substantial  damage,  even  though 
he  proved  no  loss  of  wages  or  of  time,  or  physical  injuries.  He 
is  entitled  to  recover  compensatory  damages  for  injury  done  to 
his  feelings  and  for  the  indignity  suffered.  Hamilton  v.  Third 
Ave.  R.  R.  Co.,  53  N.  Y.  25 ;  Gillespie  v.  Bklyn.  Hgts.  R.  R.  Co., 
178  N.  Y.  347 ;  Hines  v.  Dry  Dock,  75  App.  Div.  391. 

The  judgment  should  be  reversed  and  a  new  trial  granted 
with  costs  to  appellant  to  abide  the  event. 

All  concur. 


CORNISH  V.  NORTH  N.  J.  STREET  RAILWAY  CO. 

New  Jersey,  190G.     73  X.  J.  L.  273. 

Garrison,  J.  By  this  rule  to  show  cause  the  plaintiff  seeks  to 
set  aside  a  verdict  recovered  by  him  upon  the  ground  that  the 
damages  are  inadequate.  The  action  was  for  personal  injuries. 
The  verdict  was  for  $250.  The  jury  was  instructed  that  the 
testimony  showed  that,  in  expenses  and  earnings,  the  plaintiff 
had  lost  $390  as  a  result  of  his  injuries.  The  charge  then  pro- 
ceeded as  follows : 

"But  his  injury  produced  some  benefit' to  him;  that  is,  he  got 
a  chance  to  call  on  the  insurance  company  to  pay  him  $8  a  week, 
which  was  their  contract  in  case  he  should  receive  harm,  or  meet 
with  an  accident  while  at  work,  I  suppose.  At  any  rate,  he  got 
$88  from  the  insurance  company ;  so  that  he  lost  actually  in  the 
neighborhood  of  $310.  From  $300  to  $325,  between  those  figures, 
is  the  amount  he  is  actually  out,  by  reason  of  this  accident,  so 
far  as  expenditures  and  loss  of  earnings  are  concerned." 

This  instruction,  by  which  the  jury  was  permitted  to  give  to 
the  defendant  the  benefit  of  the  plaintiff's  insurance,  was 
erroneous. 

The  fund  out  of  which  such  payments  were  made  was  created 


150  CLASSIFICATION  OF  DAMAGES. 

in  part  by  the  plaintiff's  contributions  made  under  a  contract 
with  strangers  to  the  defendant  and  the  tort-feasor  was  no  more 
entitled  to  be  credited  with  the  sums  repaid  to  the  plaintiff  under 
such  contracts,  than  it  would  be  to  his  withdrawal  of  his  accumu- 
lations in  a  savings  bank. 

The  principle  is  settled  for  this  court  by  the  opinion  in  Weber 
V.  Morris  &  Essex  Railroad  Company,  36  N.  J.  Law,  213,  where 
Chief  Justice  Beasley  says :  "  A  person  committing  a  tort  cannot 
set  up  in  mitigation  of  damages  that  somebody  else,  with  whom 
he  has  no  connection,  has  either  in  whole  or  in  part  indemnified 
the  party  injured." 

The  rule  to  show  cause  is  made  absolute. 

Where  the  damages  awarded  by  the  jury  force  the  mind  to  the  con- 
clusion that  the  jury  acted  under  the  intluence  of  a  perverted  judgment, 
a  new  trial  must  be  granted.  McNeill  v.  Lyons,  22  R.  I.  7.  Where  the 
verdict  covers  only  doctor's  bills  and  loss  of  time  and  allows  nothing  for 
suffering  and  disability,  a  new  trial  will  be  granted.    IMd. 


7.     Liquidated  Damages  or  Penalty. 

KEEBLE  V.  KEEBLE. 
Alabama,  1888.     85  Ala.  552. 

SoMERViLLE,  J.  The  only  ciuestion  in  this  case  is  whether  the 
sum  of  one  thousand  dollars,  agreed  to  be  paid  by  the  appellant 
Henry  C.  Keeble,  to  Richard  C.  Keeble,  the  testator  of  the  ap- 
pellee, as  mentioned  in  the  written  contract  of  employment  be- 
tween the  parties,  is  to  be  regarded  by  the  court  as  a  penalty, 
or  as  liquidated  damages.  *  *  *  The  appellant  was  in  the 
employment  of  the  appellee's  testator  as  a  business  manager,  at 
very  liberal  wages,  having  been  a  partner  with  him  in  the  mer- 
cantile business,  under  the  firm  name  of  R.  C.  Keeble  &  Co. 
Although  he  was  but  an  employe,  having  sold  to  R.  C.  Keeble 
his  entire  interest  in  the  partnership  business,  he  remained  os- 
tensibly a  partner.  The  terms  of  the  employment,  reduced  to 
writing,  imposed  on  the  appellant,  Henry  Keeble,  the  obligation, 
among  other  duties,  "to  wholly  abstain  from  the  use  of  intoxi- 
cating liquors,"  and  "to  continue  and  remain  sober,"  giving  his 
diligent  attention  to  the  business  of  his  employer,  and  promis- 


LIQUIDATED   DAMAGES   OR  PENALTY.  151 

ing,  in  the  event  he  should  become  intoxicated,  that  he  would 
pay,  "as  liquidated  damages,"  the  sum  of  $1000,  which  the 
testator,  Richard  Keeble,  was  authorized  to  retain  out  of  a  cer- 
tain debt  he  owed  the  appellant.  The  appellant  violated  his 
promise  by  becoming  intoxicated,  and  remained  so  for  a  long 
time,  and  acted  rudely  and  insultingly  towards  the  customers 
and  employes  of  the  testator,  and  otherwise  deported  himself, 
by  reason  of  intoxication,  in  such  manner  as  to  do  injury  to  the 
business. 

It  is  not  denied  by  appellant's  counsel  that  this  is  a  total 
breach  of  the  promise  to  keep  sober;  nor  is  it  argued  that  the 
damage  resulting  from  the  violation  of  such  a  promise  can  be 
ascertained  with  any  degree  of  certainty;  nor  even  that  the 
amount  agreed  to  be  paid  as  liquidated  damages,  in  the  event  of 
a  breach,  is  disproportionate  to  the  damages  which  may  have 
been  actually  sustained  in  this  case.  But  the  contention  seems 
to  be  that,  inasmuch  as  it  was  possible  for  a  breach  to  occur 
with  no  actual  damages  other  than  nominal,  the  amount  agreed 
to  be  paid  should  be  construed  to  be  a  penalty.  Unless  this  view 
is  correct,  the  application  of  the  foregoing  rules  to  the  con- 
struction of  the  agreement  manifestly  stamps  it  as  a  stipulation 
for  liquidated  damages,  and  not  a  penalty.  It  is  argued,  in 
other  words,  that  becoming  intoxicated  in  private,  while  off  duty, 
would  be  a  violation  of  the  contract,  but  would  be  attended  with 
no  actual  damage  to  the  business  of  R.  C.  Keeble  &  Co.  This 
fact  would,  in  our  opinion,  except  the  case  from  the  operation 
of  the  rules  above  enunciated.  There  are  but  few  agreements  of 
this  kind  where  the  stipulation  is  to  do  or  not  to  do  a  particular 
act,  in  which  the  damages  may  not,  according  to  circumstances, 
vary,  on  a  sliding  scale,  from  nominal  damages  to  a  considerable 
sum.  One  may  sell  out  the  good-will  of  his  business  in  a  given 
locality,  and  agree  to  abstain  from  its  further  prosecution,  or, 
in  the  event  of  his  breach  of  his  agreement,  to  pay  a  certain  sum 
as  liquidated  damages;  as,  for  example,  not  to  practice  one's 
profession  as  a  physician  or  lawyer,  not  to  run  a  steamboat  on 
a  certain  river  or  to  carry  on  the  hotel  business  in  a  particular 
town,  not  to  re-establish  a  newspaper  for  a  given  period,  or  to 
carry  on  a  particular  branch  of  business  within  a  certain  dis- 
tance from  a  named  city.  In  all  such  cases,  as  often  decided, 
it  is  competent  for  the  parties  to  stipulate  for  the  payment  of  a 
gross  sum  by  way  of  liquidated  damages  for  the  violation  of  the 


152  CLASSIFICATION  OV  DAMAGES. 

agreement,  and  for  the  very  reason  that  such  damages  are  un- 
certain, tluctuating  and  incapable  of  easy  ascertainment.  Wil- 
liams V.  Vance,  30  Amer.  Rep,  29-31,  note ;  Graham  v.  Bickham, 
1  Amer.  Dec.  336-338,  note ;  1  Pomeroys  Eq.  Jur.  §  442,  note  1. 
It  is  clear  that  each  of  these  various  agreements  may  be  vio- 
lated by  a  substantial  breach,  and  yet  no  damages  might  accrue 
except  such  as  are  nominal.  The  obligor  may  practice  medicine, 
and  possibly  never  interfere  with  the  practice  of  the  other  con- 
tracting party;  or  law,  without  having  a  paying  client;  or  he 
may  run  a  steamboat  without  a  passenger;  or  an  hotel  without 
a  guest;  or  carry  on  a  newspaper  without  the  least  injury  to 
any  competitor.  But  the  law  will  not  enter  upon  an  investiga- 
tion as  to  the  quantum  of  damages  in  such  cases.  This  is  the  very 
matter  settled  by  the  agreement  of  the  parties.  If  the  act 
agreed  not  to  be  done  is  one  from  which,  in  the  ordinary  course 
of  events,  damages,  incapable  of  ascertainment  save  by  conject- 
ure, are  liable  naturally  to  follow,  sometimes  more  and  some- 
times less,  according  to  the  aggravation  of  the  act,  the  court  will 
not  stop  to  investigate  the  extent  of  the  grievance  complained 
of  as  a  total  breach,  but  will  accept  the  sum  agreed  on  as  a  proper 
and  just  measurement,  by  way  of  liquidated  damages,  unless  the 
real  intention  of  the  parties,  under  the  rules  above  announced, 
designed  it  as  a  penalty. 

We  may  add,  moreover,  that  no  one  can  accurately  estimate 
the  physiological  relation  between  private  and  public  drunken- 
ness, nor  the  casual  connection  between  intoxication  one  time 
and  a  score  of  times.  The  latter,  in  each  instance,  may  follow 
from  the  former,  and  the  one  may  naturally  lead  to  the  other. 
There  would  seem  to  be  nothing  harsh  or  unreasonable  in  stipu- 
lating against  the  very  source  and  beginning  of  the  more  ag- 
gravated evil  sought  to  be  avoided.  The  duty  resting  on  the 
court,  in  all  these  cases,  is  to  so  apply  the  settled  rules  of  con- 
struction as  to  ascertain  the  legally  expressed  and  real  intention 
of  the  parties.  Courts  are  under  no  obligations,  nor  have  they 
the  power,  to  make  a  wiser  or  better  contract  for  either  of  the 
parties  than  he  may  be  supposed  to  have  made  for  himself. 

The  court  below,  in  our  judgment,  did  not  err  in  holding,  as 
it  did,  by  its  rulings,  that  the  sum  agreed  to  be  paid  the  ap- 
pellee's testator  was  liquidated  damages,  and  not  a  penalty. 

Affirmed. 


LIQUIDATED   DAMAGES   OB   PENALTY.  153 

SMITH  V.  BERGENREN. 

Massachusetts,  1891.    153  Mass.  236. 

Holmes,  J.  The  defendant  covenanted  never  to  practice  his 
profession  in  Gloucester  so  long  as  the  plaintiff  should  be  in 
practice  there,  provided,  however,  that  he  should  have  the  right 
to  do  so  at  any  time  after  five  years  by  paying  the  plaintiff 
$2,000,  "but  not  otherwise."  This  sum  of  $2,000  was  not  liq- 
uidated damages ;  still  less  was  it  a  penalty.  It  was  not  a  sum 
to  be  paid  in  case  the  defendant  broke  his  contract  and  did  what 
he  agreed  not  to  do.  It  was  a  price  fixed  for  what  the  contract 
permitted  him  to  do  if  he  paid.  The  defendant  expressly  cove- 
nanted not  to  return  to  practice  in  Gloucester  imless  he  paid 
this  price.  It  would  be  against  common  sense  to  say  that  he 
could  avoid  the  effect  of  thus  having  named  the  sum  by  simply 
returning  to  practice  without  paying,  and  could  escape  for  a 
less  sum  if  the  jury  thought  the  damage  done  the  plaintiff  by 
his  competition  was  less  that  $2,000.  The  express  covenant  im- 
ported the  further  agreement  that  if  the  defendant  did  return 
to  practice  he  would  pay  the  price.  No  technical  words  are 
necessary  if  the  intent  is  fairly  to  be  gathered  from  the  instru- 
ment. St.  Albans  v.  Ellis,  16  East,  352;  Stevinson's  Case,  1 
Leon.  324 ;  Bank  v.  Marshall,  40  Ch.  Div.  112. 

If  the  sum  had  been  fixed  as  liquidated  damages,  the  defend- 
ant would  have  been  bound  to  pay  it.  Gushing  v.  Drew,  97 
Mass.  445 ;  Lynde  v.  Thompson,  2  Allen,  456 ;  Holbrook  v.  Tobey, 
&&  Me.  410.  But  this  case  falls  within  the  language  of  Lord 
Mansfield  in  Lowe  v.  Peers,  4  Burrows,  2225,  2229,  that  if 
there  is  a  covenant  not  to  plough,  with  a  penalty,  in  a  lease,  a 
court  of  equity  will  relieve  against  the  penalty;  "but  if  it 
is  worded  'to  pay  £5  an  acre  for  every  acre  ploughed  up,'  there 
is  no  alternative ;  no  room  for  any  relief  against  it ;  no  compen- 
sation. It  is  the  substance  of  the  agreement."  See,  also,  Ropes 
V.  Upton,  125  Mass.  258,  260.  The  ruling  excepted  to  did  the 
defendant  no  wrong.  In  the  opinion  of  a  majority  of  the  court, 
the  exceptions  must  be  overruled. 

Exceptions  overruled. 


154  CLASSIFICATION    OF    DAMAGES. 

TENNESSEE  MANUFACTURING  00.  v.  JAMES. 

Tennessee,   1892.     91   Tonn.   154. 

]\IiNNiE  James,  a  minor,  was  an  employe  of  the  appellant,  a 
corporation  engaged  in  the  numufacture  of  cotton  goods.  The 
contract  of  employment  was  in  writing ;  by  one  of  its  provisions 
it  Avas  stipulated  that  the  employe  should  give  two  weeks'  notice 
of  her  intention  to  quit.  It  is  further  provided  that  in  case  she 
should  leave  without  giving  two  weeks'  notice,  or  fail  or  refuse 
faithfully  to  work  during  a  period  of  two  weeks  after  giving 
such  notice,  then  the  sum  of  ten  dollars  was  "agreed  upon  as 
liquidated  damages  due  said  Tennessee  Manufacturing  Com- 
pan}^  at  the  time  of  my  failure  to  comply  with  the  terms  of  this 
contract,  to  compensate  it  for  all  damages,  both  actual  and  ex- 
emplary, and  all  loss  arising  from  my  failure  to  carry  out  the 
terms  of  this  agreement. ' ' 

Appellee  gave  notice  of  her  intention  to  leave,  and  thereafter 
worked  ten  days.  But  at  the  end  of  that  time  she  quit 
without  any  excuse.  At  the  time  she  quit  there  was  due  her 
twenty  days  wages  (amounting  to  ten  dollars),  including  the 
ten  days  after  her  notice.  If  the  stipulation  as  to  damages  was 
invalid,  the  company  owes  her  ten  dollars ;  if  valid,  then  nothing 
is  due  her.  She  sues,  by  her  father  as  next  friend,  upon  a  quan- 
tum meruit. 

LuRTON,  J.  We  agree  with  the  Circuit  Judge  in  holding  that 
this  contract  does  not  fall  within  the  case  of  Schrimpf  v.  Man- 
ufacturing Co.,  86  Tenn.,  219.  That  case  concerned  a  contract 
construed  as  stipulating  for  a  penalty  in  case  of  a  breach.  It 
was  held  not  to  be  an  agreement  for  liquidated  damages,  because 
the  forfeiture  covered  all  the  wages  due  at  time  of  breach,  re- 
gardless of  amount  due,  and  regardless  as  to  whether  the  arrear- 
ages were  the  consequence  of  the  default  of  the  company.  It 
was  a  contract  hard  and  unconscionable.  It  preserved  no  pro- 
portion between  the  sum  forfeited  and  the  actual  damages,  and 
put  all  employes  upon  same  footing,  whether  much  or  little  was 
earned,  much  or  little  due,  when  breach  occurred.  The  dam- 
ages were  to  be  all  that  was  due,  in  any  case.  To  one  this  might 
have  been  the  wages  of  months ;  to  another,  the  earnings  of  but 
a  day.  But  in  that  case  Chief  Justice  Tumey  quoted  and  in- 
dorsed the  language  of  Campbell,  J.,  in  Richardson  v.  Woehler, 
26  ^rich.  90,  where  he  said:  "We  have  no  difficulty  in  holding 


LIQUIDATED   DAMAGES   OR   PENALTY.  155 

that  the  injury  caused  by  the  sudden  breaking  off  of  a  contract 
of  service  by  either  party  involves  such  difficulties  concerning 
the  actual  loss  as  to  render  a  reasonable  agreement  for  stipulated 
damages  appropriate.  If  a  fixed  sum,  or  a  maximum  within 
which  wages  unpaid  and  accruing  since  the  last  pay-day  might 
be  forfeited,  should  be  agreed  on,  and  shall  not  be  unreasonable 
or  an  oppressive  exaction,  there  would  seem  to  be  no  legal  objec- 
:tion  to  the  stipulation,  if  both  parties  are  equally  and  justly  pro- 
tected." 

Applying  these  principles  to  the  case  for  judgment,  we  have 
no  difficulty  in  holding  that  the  stipulation  here  is  for  liquidated 
damages,  and  not  for  a  penalty,  and  that  the  contract  is  neither 
unreasonable  nor  oppressive.  "The  tendency  and  preference  of 
the  law  is  to  regard  stated  sums  as  a  penalty,  because  actual 
damages  can  then  be  recovered,  and  the  recovery  limited  to  such 
damages.  This  tendency  and  preference  however,  does  not 
exist  when  the  actual  damages  cannot  be  ascertained  by 
any  standard.  A  stipulation  to  liquidate  damages  in  such 
cases  is  considered  favorably."     1  Sutherland  on  Damages  490. 

This  contract  of  employment  on  its  face  affords  no  data  by 
which  the  actual  damages  likely  to  result  from  its  non-observance 
can  with  any  certainty  be  ascertained.  Such  a  circumstance  has 
been  regarded  as  justifying  the  courts  in  holding  the  sum  stip- 
ulated as  liquidated  damages. 

The  plaintiff  in  error  was  a  cotton-mill,  having  in  its  em- 
ployment hundreds  of  hands.  The  work  is  divided  into  many 
departments.  The  same  material  is  handled  by  one  set  of  hands, 
and  put  in  condition  for  another,  and  the  second  department 
still  further  advances  its  manufacture;  and  so  on,  through  suc- 
cessive stages  of  progress.  The  evidence  shows  that  each  depart- 
ment is  dependent  upon  that  immediately  below  it.  Now,  if 
the  operatives  of  one  department  quit,  or  their  work  is  delayed, 
its  effect  is  felt  in  all  to  a  greater  or  less  degree.  It  is  also  sho^Ti 
that  it  is  not  always  easy  to  replace  an  operative  at  once,  and 
that  the  unexpected  quitting  of  even  one  hand  will,  to  some  ex- 
tent, affect  the  results  throughout  the  mill.  Yet  the  evidence 
shows  that  it  would  be  impossible  to  calculate  with  any  certainty 
the  precise,  actual  loss  due  to  an  unexpected  breach  of  an  em- 
ploye's engagement;  though  it  is  shown  that  there  are  some  de- 
partments of  work  where  the  quitting  of  a  small  number  of 
hands,  without  notice,  would  stop  the  entire  mill,  and  throw 


156  CLASSIFICATION    OF   DAMAGES. 

other  hundreds  out  of  employment.  In  this  day  of  great  factor- 
ies, and  the  consequent  division  of  labor  into  separate  depart- 
ments, a  degree  of  interdependence  among  employes  exists,  which 
they  ought  and  do  recognize,  and  which  makes  the  obligation  of 
each  to  the  whole,  and  to  the  common  employer,  all  the  more 
important.  The  case  is  one,  then,  where  the  certainty  of  some 
damage,  and  the  uncertainty  of  means  and  standards  by  which 
the  actual  damage  can  be  ascertained,  requires  the  courts  to  up- 
hold the  contract  as  one  for  liquidated  damages,  and  not  as  pro- 
viding for  a  penalty.  The  sum  fixed  is  certain.  It  is  pro- 
portioned to  the  earning  capacity  of  the  employe,  and  hence 
presumably  with  regard  to  the  particular  results  of  a  breach  in 
each  department.  There  is  no  hardship  in  the  agreement  requir- 
ing two  weeks'  notice.  If  the  operative  leaves  for  good  cause, 
the  contract  would  not  apply.  If  able  to  work,  the  pay  con- 
tinues until  notice  has  been  worked  out. 

That  she  returned  the  next  day  after  quitting,  and  offered  to 
work  out  her  notice,  is  no  compliance.  The  mischief  had  been 
done.  She  had  voluntarily,  and  without  pretence  of  excuse,  or 
asking  to  be  released,  gone  off,  and  left  her  work  standing,  and 
endeavored  to  get  others  to  go  with  her.  The  damages  had  ac- 
crued, and,  under  the  facts  of  this  case,  appellant  was  not  bound 
to  restore  her. 

Reverse.     Judgment  here  for  plaintiff  in  error. 


MONMOUTH  PARK  ASSOC,   v.  WALLIS  IRON  WORKS. 

New  Jersey  Court  of  Errors  and  Appeals,  1893. 
55  N.  J,  L.  132. 

The  plaintiff  sued  for  work  under  a  sealed  contract,  the  ma- 
terial part  of  which  is  as  follows: 

"In  case  said  party  of  the  first  part  shall  [fail]  to  fully 
and  entirely,  and  in  conformity  to  the  provisions  and  condi- 
tions of  this  agreement,  perform  and  complete  the  said  work, 
and  each  and  every  part  and  appurtenance  thereto,  within  the 
time  hereinbefore  limited  for  such  performance  and  completion, 
or  within  such  further  time  as  in  accordance  with  the  provi- 
sions of  this  agreement  shall  be  fixed  or  allowed  for  such  per- 
formance and  completion,  the  said  party  of  the  first  part  shall 
and  will  pay  to  the  said  party  of  the  second  part  the  sum  of  one 
hundred  dollars  for  each  and  every  day  that  they,  the  said  party 


LIQUIDATED   DAMAGES   OR  PENALTY.  157 

of  the  first  part,  shall  be  in  default,  which  said  sum  of  one  hun- 
dred dollars  per  day  is  hereby  agreed  upon,  fixed  and  deter- 
mined by  the  parties  hereto  as  the  damages  which  the  party  of 
the  second  part  will  suffer  by  reason  of  such  default,  and  not 
by  way  of  penalty.  And  the  said  party  of  the  second  part  may 
and  shall  deduct  and  retain  the  same  out  of  any  moneys  which 
may  be  due  or  become  due  to  the  party  of  the  first  part  under 
this  agreement." 

Dixon,  j,  *  *  *  Taking  the  case  thus  perfected  the 
plaintiff  urged  that  the  $100  a  day  was  a  penalty;  and  so  the 
trial  judge  ruled,  requiring  that  the  defendant  should  prove  the 
actual  damages  and  be  allowed  only  for  what  was  proved.  To 
this  ruling  the  defendant  excepted. 

In  determining  whether  a  sum,  which  contracting  parties 
have  declared  payable  on  default  in  performance  of  their  con- 
tract, is  to  be  deemed  a  penalty  or  liquidated  damages,  the  gen- 
eral rule  is  that  the  agreement  of  the  parties  will  be  effectuated. 
Their  agreement  will,  however,  be  ascertained  by  considering, 
not  only  particular  words  in  their  contract,  but  the  whole  scope 
of  their  bargain,  including  the  subject  to  which  it  relates.  If, 
on  such  consideration,  it  appears  that  they  have  provided  for 
larger  damages  than  the  law  permits,  e.  g.,  more  than  the  legal 
rate  for  the  non-payment  of  money,  or  that  they  have  provided 
for  the  same  damages  on  the  breach  of  any  one  of  several  stipu- 
lati/)ns,  when  the  loss  resulting  from  such  breaches  clearly  must 
differ  in  amoimt,  or  that  they  have  named  an  excessive  sum  in 
a  case  where  the  real  damages  are  certain  or  readily  reducible 
to  certainty  by  proof  before  a  jurj%  or  a  sum  which  it  would 
be  unconscionable  to  award,  under  any  of  these  conditions  the 
sum  designated  is  deemed  a  penalty.  And  if  it  be  doubtful  on 
the  whole  agreement  whether  the  sum  is  intended  as  a  penalty 
or  as  liquidated  damages,  it  will  be  construed  as  a  penalty,  be- 
cause the  law  favors  mere  indemnity.  But  when  damages  are  to 
be  sustained  by  the  breach  of  a  single  stipulation,  and  they  are 
uncertain  in  amount  and  not  readily  susceptible  of  proof  under 
the  rules  of  evidence,  then,  if  the  parties  have  agreed  upon  a 
sum  as  the  measure  of  compensation  for  the  breach,  and  that 
sum  is  not  disproportionate  to  the  presumable  loss,  it  may  be 
recovered  as  liquidated  damages.  These  are  the  general  prin- 
ciples laid  down  in  the  text-books  and  recognized  in  the  judicial 
reports  of  this  State.     Chetldick's  Executor  v.  Marsh,  1  Zab. 


158  CLASSIFICATION    OF    DA  .MAGES. 

463;  'Whitefield  v.  Levy,  6  Yrooni,  149;  Hoagland  v.  Segur,  9 
Id.  230 ;  Lansing  v.  Dodd,  1 G  Id.  525. 

In  the  piesont  case  the  default  consists  of  the  breach  of  a 
single  covenant,  to  complete  the  grand  stand  as  described  in  the 
approved  plans  and  specifications  within  the  time  limited.  It 
is  plain  that  the  loss  to  result  from  such  a  breach  is  not  easily 
ascertainable.  The  magnitude  and  importance  of  the  grand 
Btanil  may  be  int^erred  from  its  cost — $133,000.  It  formed  a 
necessary  part  of  a  very  expensive  enterprise.  The  structure 
was  not  one  that  could  be  said  to  have  a  definable  rental  value. 
Its  worth  depended  upon  the  success  of  the  entire  venture. 
How  far  the  non-completion  of  this  edifice  might  affect  that 
success,  and  what  the  profits  or  losses  of  the  scheme  would  be, 
were  topics  for  conjecture  only.  The  conditions  therefore  seem 
to  have  been  such  as  to  justify  the  parties  in  settling  for  them- 
selves the  measure  of  compensation. 

The  stipulation  of  parties  for  specified  damages,  on  the  breach 
of  a  contract  to  build  vnthin  a  limited  time,  have  frequently 
been  enforced  by  the  courts.  In  Fletcher  v.  Dycke,  2  T.  R.  32, 
£10  per  week  for  delay  in  finishing  the  parish  church ;  in  Duck- 
worth v.  Alison,  1  Mees.  &  W.  412,  £5  per  week  for  delay  in  com- 
pleting repairs  of  a  warehouse ;  in  Legge  v.  Harlock,  12  Q.  B. 
1015,  £1  per  day  for  delay  in  erecting  a  barn,  wagon-shed,  and 
granary;  in  Law  v.  Local  Board  of  Redditch,  (1892)  1  Q.  B. 
127,  £100  and  £5  per  week  for  delay  in  constructing  sewerage 
works;  in  Ward  v.  Hudson  River  Building  Co.,  125  N.  Y.  230, 
$10  a  day  for  delay  in  erecting  dwelling-houses,  and  in  Malone 
V.  City  of  Philadelphia,  23  Atl.  Rep.  628,  $50  a  day  for  delay  in 
completing  a  municipal  bridge,  were  all  deemed  liquidated  dam- 
ages. Counsel  has  referred  us  to  two  cases  of  building  contracts, 
where  a  different  conclusion  was  reached — Muldoon  v.  Lynch, 
66  Cal.  536,  and  Clement  v.  Schuylkill  River  R.  R.  Co.,  132  Pa. 
445.  In  the  former  case  a  statutory  rule  prevailed,  and  in  the 
latter  the  real  damage  was  easily  ascertainable  and  the  stipu- 
lated sum  wa.s  unconscionable.  In  the  ease  at  bar,  we  have  no 
data  for  saying  that  $100  a  day  was  unconscionable. 

The  sole  question  remaining  on  this  exception,  therefore,  is 
whether  the  parties  have  agreed  upon  the  sum  named  as  liq- 
uidated damages. 

Their  language  seems  indisputably  to  have  this  meaning. 
They  expressly  declare  the  sum  to  be  agreed  upon  as  the  dam- 


LIQUIDATED   DAMAGES   OR   PENALTY.  159 

ages  which  the  defendant  will  suffer;  they  expressly  deny  that 
they  mean  it  as  a  penalty,  and  they  provide  for  its  deduction 
and  retention  by  the  defendant  in  a  mode  which  could  be  applied 
only  if  the  sum  be  considered  liquidated  damages. 

But  it  is  argued  that,  as  the  contract  authorized  the  engineer 
of  the  defendant  to  make  any  alterations  or  additions  that  he 
might  find  necessary  during  the  progress  of  the  structure,  and 
required  the  plaintiff  to  accede  thereto,  it  is  unreasonable  to 
suppose  that  the  plaintiff  could  have  intended  to  bind  itself  in 
liquidated  damages  for  delay  in  completing  such  a  changeable 
contract. 

But  this  argument  seems  to  be  aside  from  the  present  inquiry, 
which  is,  not  whether  the  plaintiff  became  responsible  for  dam- 
ages by  reason  of  the  non-completion  of  the  grand  stand  on  the 
day  named,  but  whether,  if  it  did  become  so  responsible,  those 
damages  are  liquidated  by  the  contract.  On  the  question  first 
stated,  changes  ordered  by  the  engineer  may  afford  matter  for 
consideration;  on  the  second  question,  they  are  irrelevant. 

Certainly  the  bills  of  exceptions  do  not  indicate  any  altera- 
tions or  additions  which,  as  matter  of  law,  would  relieve  the 
plaintiff  from  responsibility  for  the  admitted  delay,  and  con- 
sequently there  may  have  been  ground  for  considering  the  de- 
fendant's damages.  If  there  was,  the  amount  of  the  damages 
was  adjusted  by  the  contract  at  $100  per  day. 

We  think  the  ruling  at  the  Circuit,  on  this  point,  was  erron- 
eous.    *     *     * 


CURTIS  V.  VAN  BERGH. 

New  York,  1899.  161  K  Y.  47. 
This  action  was  brought  to  recover  rent  reserved  for  the  use 
of  a  certain  building  in  the  city  of  Rochester  under  a  written 
contract  and  lease.  The  defendants  pleaded  a  counterclaim 
arising  out  of  the  following  facts,  which  might  have  been  found 
by  the  jury  upon  the  trial :  For  some  years  prior  to  January 
23,  1896,  the  defendants  had  been  engaged  in  the  manufacture 
of  plated  silverware  in  the  Butts  Building  in  said  city,  employ- 
ing a  large  number  of  men,  and  doing  a  general  business  as  well 
as  furnishing  goods  upon  contract.  They  were  prosperous,  and 
finally  outgrew  their  old  quarters.  As  their  lease  was  to  expire 
on  the  1st  of  July,  1896,  in  order  to  meet  the  rapid  gro'wi;h  of 
their  business  they  entered  into  a  contract  with  the  plaintiff's 


IGO  CLASSIFICATION  OF  DAMAGES. 

assignor  on  the  23rd  of  January,  1806,  whereby  he  agreed  to 
erect  and  comploto  a  building  according  to  certain  plans  and 
specifications,  already  prepared,  and  have  it  ready  for  occu- 
pancy on  or  before  July  1,  1896,  and  to  let  the  same  to  the  de- 
fendants, with  steam  heat  and  power,  for  the  term  of  five  ^''ears 
from  that  day,  with  the  privilege  of  five  years  more,  at  the  rent 
reserved  of  $2,100  a  year,  which  the  defendants  agreed  to  pay 
during  the  first  period  named.  Said  agreement  contained, 
among  other  covenants  on  the  part  of  the  plaintiff's  assignor, 
the  following:  "In  case  the  said  party  of  the  first  part  shall 
be  unable  for  any  reason  to  erect  said  building  according  to  the 
plans  and  specification  hereinbefore  referred  to,  and  to  have 
the  same  completed  on  or  before  the  first  day  of  July,  1896,  then, 
and  in  that  case,  said  party  of  the  first  part  shall  pay  to  the  said 
parties  of  the  second  part  the  sum  of  $50  for  each  day  after 
July  1,  1896,  that  the  same  shall  not  be  completed,  as  fixed, 
settled,  and  liquidated  damages  of  the  parties  of  the  second  part 
which  they  will  sustain  by  reason  of  the  failure  of  said  party 
of  the  first  part  to  complete  said  building  at  the  time  hereinbe- 
fore specified."  The  plaintiff's  assignor  did  not  complete  the 
building  for  defendants'  full  occupation  until  August  3rd,  al- 
though a  few  days  earlier  they  began  to  move  into  the  basement, 
and  they  did  not  learn  that  they  could  not  have  the  premises  at 
the  time  agreed  upon  until  the  23rd  of  June.  They  w^ere  ac- 
customed to  make  goods  in  the  summer  for  their  fall  and  holi- 
day trade,  and  to  send  out  their  travelers  about  the  middle  of 
August.  They  relied  upon  the  additional  room  and  new  ma- 
chinery to  get  their  work  out  in  July,  but  were  unable  to  do 
so.  Owing  to  the  failure  to  get  into  the  new  building,  they  could 
not  make  the  goods  required  by  their  business,  or  even  furnish 
samples  to  their  agents,  and  the  result  was  a  loss  of  business 
instead  of  an  increase,  as  was  expected,  on  account  of  the  addi- 
tional facilities.  They  discharged  some  of  their  men,  and  did 
not  begin  to  make  holiday  goods  until  August  15th.  The  wages 
account  ran  down  from  an  average  of  $350  a  week  in  June  to 
about  $165  in  July.  They  tried  to  get  more  room  in  the  old 
building,  but  could  not  do  so,  although  they  finally  succeeded 
in  securing  the  use  of  their  old  quarters  for  the  month  of  July. 
The  new  premises  contained  four  times  as  much  room  as  the  old, 
and  with  the  new  machinery,  which  they  ordered  in  reliance 
upon  the  contract,  had  three  or  four  times  the  manufacturing 


LIQUIDATED    DAMAGES    OR   PENALTY.  161 

capacity  of  the  old.  If  the  building  had  been  ready  on  the  1st 
of  July,  they  could  have  moved  in  two  days,  but  as  it  was,  they 
had  to  move,  at  an  increased  expense,  small  parcels  of  their 
machinery  and  effects  at  a  time,  as  the  partial  completion  of  the 
building  made  room  for  it.  The  contract  required  an  elevator 
with  a  capacity  of  2,500  pounds  for  the  exclusive  use  of  defend- 
ants, but  the  elevator  was  not  ready  until  the  middle  of  August, 
so  that  they  were  compelled  to  hoist  their  machinery  by  ropes. 
The  defendants  offered  on  the  trial  to  show  a  large  increase  of 
business  during  every  month  of  1896  over  the  corresponding 
month  of  1895,  except  July  and  August,  when  there  was  a  loss, 
but  the  evidence  was  excluded  upon  the  objection  of  the  plaint- 
iff, and  the  defendants  excepted.  At  the  close  of  the  evidence 
the  counsel  for  the  plaintiff'  moved  for  the  direction  of  a  verdict 
in  his  favor  for  the  amount  of  the  rent  claimed.  The  counsel 
for  the  defendants  asked  to  go  to  the  jury  on  the  whole  case,  "on 
the  intention  of  the  parties  whether  they  intended  to  liquidate 
the  damages,"  and  "on  the  question  as  to  whether  or  not  the 
damage  sustained  by  these  people  is  out  of  all  due  proportion 
to  the  liquidated  damages  stated  in  the  contract."  The  trial 
court  refused  to  submit  the  case  to  the  jury,  and  directed  a 
verdict  in  favor  of  the  plaintiff,  the  defendants  excepting  sep- 
arately to  each  ruling,  and  from  the  judgment  of  affirmance 
rendered  by  the  appellate  division  they  have  appealed  to  this 
court. 

Vann,  J.  The  question  presented  by  this  appeal  is  whether 
the  sum  which  the  plaintiff's  assignor  promised  to  pay  the  de- 
fendants for  each  day's  delay  in  completing  the  building  after 
expiration  of  the  period  stipulated  is  in  the  nature  of  a  penalty 
or  of  liquidated  damages.  This  question  depends  upon  the  in- 
tention of  the  parties,  which  is  to  be  gathered  from  the  language 
used  in  making  the  contract,  read  in  the  light  of  the  circum- 
stances surrounding  them  at  the  time.  Little  v.  Banks,  85  N. 
Y.  258,  266 ;  Kemp  v.  Ice  Co.,  69  N.  Y.  45,  58 ;  Colwell  v.  Law- 
rence, 38  N.  Y.  71,  74.  The  words  of  the  contract  are  that  the 
sum  of  $50  shall  be  paid  by  the  plaintiff's  assignor  to  the  de- 
fendants for  each  day  after  the  date  named  for  performance 
"as  fixed,  settled,  and  liquidated  damages"  which  the  defend- 
ants "will  sustain  by  reason  of  the  failure  *  *  *  to  com- 
plete said  building"  within  the  time  specified.  If  this  language 
is  given  its  ordinary  meaning,  the  parties  have  not  only  defined 


162  CLASSIFICATION    OF   DAMAGES. 

the  sum  promised  to  be  paid  as  liquidated  damages,  but  have  ex- 
pressly covenanted  that  it  is  the  amount  of  damage  which  the 
defendants  would  sustain  in  consequence  of  the  delay,  thus  lim- 
iting recovery  to  the  sum  named,  even  if  the  actual  damages 
should  greatly  exceed  it.     The  plaintiff,  however,  contends  that 
the  language  of  the  agreement  is  not  conclusive,  and  that  these 
words  shoukl  not  be  given  their  ordinary  meaning,  because  the 
per  diem  payment  is  so  excessive  as  to  shock  one's  sense  of 
justice,  and  to  warrant  the  inference  that  the  parties  could  not 
have  intended  what  they  said,  because  it  would  be  unreasonable. 
It  is  insisted  that,  as  the  rent  reserved  was  but  $5.75  per  day, 
the  sum  of  $50  for  each  day's  delay  is  so  out  of  proportion  to 
the  probable  loss  as  to  bring  the  contract  within  that  class  of 
cases  which  hold  that  where  the  sum  agreed  to  be  paid  is  so 
great  as  to  be  unconscionable  it  will  be  regarded  as  a  penalty, 
even  if  the  parties  have  expressly  declared  their  intention  to 
be  otherwise.    Kemble  v.  Farren,  8  Bing.  141 ;  Jackson  v.  Baker, 
2  Edw\  Ch.  470;  Spencer  v.  Tilden,  5  Cow.  144;  Niver  v.  Ross- 
man,  18  Barb.  50 ;  Mott  v.  Mott,  11  Barb.  134 ;  Beale  v.  Hayes, 
5   Sandf.   640.      These   authorities  show  that  the   courts  have 
struggled  hard  against  the  apparent  intention  of  the  parties, 
in  order  to  relieve  the  one  in  default  from  an  improvident  bar- 
gain.   It  is,  however,  the  law  of  this  state,  as  settled  by  this  court, 
that,  where  the  language  used  is  clear  and  explicit  to  that  effect, 
the  amount  is  to  be  deemed  liquidated  damages  when  the  actual 
damages   contemplated  at  the   time  the   agreement  was   made 
*'are  in  their  nature  uncertain,  and  unascertainable  with  exact- 
ness, and  may  be  dependent  upon  extrinsic  considerations  and 
circumstances,  and  the  amount  is  not,  on  the  face  of  the  contract, 
out  of  all  proportion  to  the  probable  loss."    Ward  v.  Building 
Co.,  125  N.  Y.  230 ;  Little  v.  Banks,  85  N.  Y.  258 ;  Kemp  v.  Tee 
Co.',  69  N.  Y.  45,  57 ;  Clement  v.  Cash,  21  N.  Y.  253 ;  Bagley  v. 
Peddie,  5  Sandf.  192 :  Id.,  16  N.  Y.  469 ;  Dunlop  v.  Gregory,  10 
N.  Y.  241 ;  Cotheal  v.  Talmage,  9  N.  Y.  551. 

We  thus  reach  the  ultimate  question  whether  the  damages 
within  the  contemplation  of  the  parties  when  they  made  the  con- 
tract in  question  are  so  uncertain  as  to  be  difficult  of  ascertain- 
ment, and,  if  so,  whether  they  are  so  grossly  excessive  as  to  be 
out  of  all  proportion  to  the  probable  loss.  In  making  said  con- 
tract the  defendants  provided  for  the  lease  of  a  building,  to  be 
erected,  when  there  was  less  than  six  months'  time  within  which 


LIQUIDATED   DAMAGES   OR  PENALTY,  163 

to  complete  it,  and  they  needed  protection  from  the  consequences 
of  failure.  They  were  engaged  in  a  growing  and  profitable 
manufacturing  business,  which  required  more  room  and  addi- 
tional machinery.  It  was  necessary  to  have  the  new  building 
ready  when  their  old  lease  expired,  or  their  business  would  be 
seriously  interrupted,  and  they  would  have  no  place  to  put  either 
their  new  or  their  old  machinery.  Moreover,  they  could  not 
manufacture  goods  for  the  fall  and  holiday  trade,  and  they 
would  be  subject  to  summary  ejectment  from  their  old  quarters 
for  holding  over  after  expiration  of  their  term.  It  was  doubtful 
whether,  at  midsummer,  they  could  secure  another  place,  tem- 
porarily, and,  if  they  could,  it  would  compel  them  to  move  twice, 
at  an  increased  expense  and  loss  of  time.  Both  parties  knew 
that  the  failure  to  have  the  building  ready  on  time  would  nat- 
urally result  in  the  loss  of  business,  and  either  in  the  temporary 
occupation  of  another  building  or  a  forcible  removal  through 
legal  process.  These  elements  of  damage,  which  were  neces- 
sarily within  the  contemplation  of  the  parties,  as  reasonable 
men,  when  they  made  the  contract,  are  uncertain,  hard  to  ascer- 
tin  with  exactness,  and  dependent  upon  extrinsic  circumstances 
and  considerations.  Who  can  tell  the  loss  to  a  large  manufactur- 
ing business,  caused  by  closing  the  works  in  a  busy  season,  by 
the  removal  of  such  a  business  to  temporary  quarters,  or  by 
summary  dispossession  at  the  hands  of  an  officer?  Who  can 
estimate  the  injury  to  a  manufacturing  plant  under  such  cir- 
cumstances ?  What  is  more  difficult  to  prove  than  loss  of  profits 
or  damages  to  a  business?  What  pecuniary  standard  is  there 
to  measure  them  by?  Little  v.  Banks,  supra.  How  can  the 
amount  be  fixed  except  by  agreement  ?  The  damages,  under  the 
facts  before  us,  are  necessarily  hard  to  establish  with  exactness, 
or  otherwise,  yet  they  may  be  so  serious  as  to  render  it  desirable 
to  have  the  amount  agreed  upon  in  advance.  The  parties  them- 
selves can  "come  to  a  more  satisfactory  conclusion  as  to  the 
damages  than  would  be  possible  for  a  jury. ' '  Jones  v.  Binf ord, 
74  Me.  445.  This  is,  therefore,  one  of  those  eases  where  it  must 
be  presumed  that  the  parties  stipulated  for  the  payment  of  a 
fixed  sum  of  money  absolutely  ' '  from  the  difficulty  of  ascertain- 
ing any  exact  amount  of  damages  which  would  be  sustained  by 
a  breach  of  the  agreement."    Chase  v.  Allen,  13  Gray,  42. 

Is  the  sum  agreed  upon  out  of  all  proportion  to  the  probable 
loss,  under  the  circumstances  known  to  the  parties  when  the 


164  CLASSIFICATION    OF   DAMAGES. 

agreement  was  made?  Is  it  so  disproportionate  that  one  "would 
start  at  the  mere  mention  of  it?"  which  is  the  test  laid  down 
in  Cotheal  v.  Talmage,  supra.  Of  course,  the  parties  did  not 
contemplate  a  long  delay  in  completing  the  building,  or  neither 
of  them  would  have  entered  into  the  contract  at  all.  AVe  can- 
not say,  as  matter  of  law,  that  $50  a  day  for  the  absolute  sus- 
pension of  a  prosperous  manufacturing  business  for  a  few  days, 
at  the  busiest  season  of  the  year,  accompanied  by  a  temporary 
removal  to  other  quarters,  or  a  forcible  removal  to  the  street, 
is  so  excessive  as  to  shock  one's  sense  of  justice.  It  is  less  in 
proportion  to  the  actual  damages  than  the  amounts  sustained 
in  several  of  the  cases  cited.  Indeed,  the  actual  damages  might 
exceed  it,  and  the  covenant  thus  prove  a  protection  to  the  one 
in  default.  We  think  the  learned  trial  judge  erred  in  directing 
a  verdict  for  the  plaintiff,  and  that  the  judgment  below  should 
be  reversed,  and  a  new  trial  granted,  Avith  costs  to  abide  the 
event.    All  concur.  Judgment  reversed,  etc. 


ILLINOIS  CENT.  R.  CO.  v   CABINET  CO. 

Tennessee,  1900.     104  Tenn.  568. 

The  Southern  Seating  and  Cabinet  Company  entered  into  a 
contract  with  the  rector  of  St.  John's  Episcopal  Church  at 
Petersburg,  Va.,  to  manufacture  and  put  in  certain  church 
pews  at  a  cost  of  $524;  the  contract  containing  a  provision  for 
liquidated  damages  at  $10  per  day  for  each  day  of  delay  after 
May  6,  1898.  The  pews  were  manufactured  and  shipped  over 
the  defendant  railroad  company 's  lines ;  its  agent  being  notified 
of  the  nature  of  the  contract  with  the  church.  The  pews  arrived 
24  days  late,  and  the  cabinet  company  settled  with  the  church 
for  $344 ;  a  deduction  of  $180  being  made  for  the  delay.  Thero 
had  been  a  misdirection  in  the  way  bill. 

Caldw^ell,  j.  *  *  *  Where  property  is  shipped  to  market 
for  general  sale  to  such  purchasers  as  may  be  obtained,  and  the 
carrier  unreasonably  and  negligently  delays  the  transportation, 
the  measure  of  damages  for  that  default  is  the  depreciation  in 
salable  quality  and  market  value  of  the  property  at  the  place  of 
destination  between  the  time  when  it  should  have  arrived  and 
when  it  did  in  fact  arrive.  Railroad  Co.  v.  Hale,  85  Tenn.  69 ; 
Hutchinson  on  Carriers  §  771 ;  3  Wood's  Railway  Law,  1607; 
but,  if  the  property  is  sold  at  an  advantageous  price  before  ship- 


LIQUIDATED  DAMAGES  OR  PENALTY.  165 

ment,  on  condition  that  it  be  delivered  within  a  certain  time,  and 
the  carrier,  with  knowledge  of  that  fact,  undertakes  the  trans- 
portation, and  through  negligence  fails  to  make  the  delivery  in 
time,  and  the  conditional  purchaser  declines  to  receive  the  prop- 
erty on  account  of  the  delay,  the  liability  of  the  carrier  is  meas- 
ured by  the  difference  between  the  market  value  of  the  property 
when  it  arrived  at  the  place  of  destination  and  the  price  at  which 
it  was  conditionally  sold  before  shipment.  Deming  v.  Railway 
Co.,  48  N.  H.  -155 ;  Hutchinson  on  Carriers  §  772. 

The  difference  between  the  modes  of  measuring  the  carrier's 
liability  in  the  two  cases  is  due  to  the  difference  between  its 
obligations  and  the  consequences  of  their  breach.  In  the  former 
case  the  obligation  is  general,  and  the  loss  and  liability  are  gen- 
eral, while  in  the  latter  case  the  obligation  is  special,  and  the 
loss  and  liability  are  special. 

Referring  to  the  carrier's  responsibility  for  the  breach  of  a 
special  contract  by  delay,  a  distinguished  author  has  said :  ' '  But 
if  the  intended  use  and  application  of  the  goods  to  be  carried 
were  expressly  brought  to  the  notice  of  the  company's  servants 
at  the  time  they  received  them,  or  could  be  reasonably  inferred 
from  circumstances  known  to  them,  so  that  the  special  use  or  ap- 
plication might  be  fairly  considered  to  be  within  the  contempla- 
tion of  both  parties  to  the  contracts,  the  consignor  is  entitled  to 
recover  the  damages  naturally  resulting  from  his  so  being  unable 
to  use  or  apply  the  goods,  since  both  parties  may  be  said  to 
have  made  this  the  basis  of  the  contract."  3  Wood's  Railway 
Law,  1607. 

The  contract,  breached  by  the  defendant,  now  before  the  court, 
was  undoubtedly  a  special  one.  The  pews  in  question  were  man- 
ufactured after  a  peculiar  design,  for  a  particular  church,  under 
a  particular  contract,  of  which  the  defendant  was  distinctly 
notified  at  the  time  it  accepted  them  for  carriage.  The  con- 
tract of  carriage  being  special,  the  liability  for  its  nonobserv- 
ance  was  likewise  special,  and  the  plaintiff  was  entitled  to  re- 
cover all  damages  naturally  resulting  from  the  breach,  whatever 
the  amoimt  may  liave  been. 

The  trial  .judge,  in  that  portion  of  the  charge  heretofore 
quoted,  instructed  the  jury,  in  substance,  that  the  proper  meas- 
ure of  the  plaintiff's  recovery,  if  any  should  be  allowed,  would 
be  the  penalty  of  its  contract  with  the  consignee  for  the  period 
the  pews  were  delayed  beyond  the  time  therein  stipulated  as  the 


166  CLASSIFICATION    OP   DAMAGES. 

required  date  of  delivery,  which,  the  record  shows,  amounted  to 
$180,  the  sum  actually  deducted  by  the  coiisiguee  from  the  pur- 
chase price  of  the  pews.  That  was  certainly  the  amount  of  the 
plaintiff's  real  loss,  and,  in  view  of  the  notice  given  at  the  time 
of  the  shipment,  it  may  fairly  and  reasonably  be  assumed  to  be 
the  exact  extent  of  the  injury  which  the  plaintiff  and  the  defend- 
ant contemplated  as  the  natural  result  of  so  long  a  delay  in  the 
delivery  of  the  pews,  and  therefore  the  true  measure  of  damages 
recoverable  for  the  breach.     *     *     * 

The  motion  to  modify  is  overruled. 


CLYDEBANK  ENGINEERING  AND  SHIPBUILDING 

COMPANY  V.   DON  JOSE  RAMOS  YZQUIERDO  Y 

CASTANEDA. 

L.  R.  1905,  Appeal  Cases,  6. 

The  Spanish  Government  sought  to  recover  penalties  incur- 
red under  a  contract  for  the  construction  of  two  torpedo-boat 
destroyers. 

The  contracts  contained  this  clause : 

''The  penalty  for  later  delivery  shall  be  at  the  rate  of  500  1. 
per  week  for  each  vessel  not  delivered  by  the  contractors  in  the 
contract  time." 

The  respondents  claimed  damages  for  135  weeks  delay  or 
67,500  1.  in  all,  with  interest. 

Earl  of  Halsbury,  L.  C.  :  My  Lords,  this  is  a  case  in  which 
a  party  to  an  agreement  has  admittedly  broken  it,  and  an  action 
was  brought  for  the  purpose  of  enforcing  the  payment  of  a  sum 
of  money  which,  by  the  agreement  between  the  parties,  was 
fixed  as  that  which  the  defendants  were  to  pay  in  the  event  that 
has  happened. 

Two  objections  have  been  made  to  the  enforcements  of  pay- 
ment. The  first  objection  is  one  which  appears  upon  the  face 
of  the  instrument  itself,  namely,  that  it  is  a  penalty,  and  not, 
therefore,  recoverable  as  a  practical  arrangement  of  the  amount 
of  damages  resulting  from  the  breach  of  contract.  It  cannot,  I 
think,  be  denied — indeed,  I  think  it  has  been  frankly  admitted  by 
the  learned  counsel— that  not  much  reliance  can  be  placed  upon 
the  mere  use  of  certain  words.  Both  in  England  and  in  Scot- 
land it  has  been  pointed  out  that  the  Court  must  proceed  ac- 
cording to  what  is  the  real  nature  of  the  transaction,  and  that 


LIQUIDATED   DAMAGES   OR  PENALTY.  167 

the  mere  use  of  the  word  "penalty"  on  the  one  side,  or  "dam- 
ages ' '  on  the  other,  would  not  be  conclusive  as  to  the  rights  of  the 
parties.  It  is,  I  think,  not  denied  now  that  the  law  is  the  same 
both  in  England  and  in  Scotland.  The  different  form  of  its 
administration  gave  rise  doubtless  to  the  Act  of  William  III. 
(8  &  9  Will.  3,  c.  11),  s  8,  which,  of  course,  is  that  upon  which 
English  lawyers  rely  when  this  question  occurs;  but  that  dif- 
ference only  arose  from  a  difference  in  the  mode  of  administer- 
ing in  this  countiy  the  two  branches  of  jurisprudence  which  we 
call  law  and  equity,  while  the  Scotch  judges  had  full  jurisdiction 
in  each  of  the  Courts  to  administer  justice,  and  in  administering 
justice  to  administer  it  according  to  both  branches  of  juris- 
prudence. 

We  come  them  to  the  question :— What  is  the  agreement  here? 
and  whether  this  sum  of  money  is  one  which  can  be  recovered 
as  an  agreed  sum  as  damages,  or  whether,  as  has  been  contended, 
it  is  simply  a  penalty  to  be  held  over  the  other  party  in  terrorem 
— whether  it  is,  what  I  think  gave  the  jurisdiction  to  the  Courts 
in  both  countries  to  interfere  at  all  in  any  agreement  between 
the  parties,  unconscionable  and  extravagant,  and  one  which  no 
Court  ought  to  allow  to  be  enforced. 

My  Lords,  it  is  impossible  to  lay  down  any  abstract  rule  as 
to  what  it  may  or  it  may  not  be  extravagant  or  unconscionable 
to  insist  upon  without  reference  to  the  particular  facts  and  cir- 
cumstances which  are  established  in  the  individual  case.  I  sup- 
pose it  would  be  possible  in  the  most  ordinary  case,  where  people 
know  what  is  the  thing  to  be  done  and  what  is  agreed  to  be  paid, 
to  say  whether  the  amount  was  unconscionable  or  not.  For  in- 
stance, if  you  agreed  to  build  a  house  in  a  year,  and  agreed  that 
if  you  did  not  build  the  house  for  50  1.,  you  were  to  pay  a  million 
of  money  as  a  penalty,  the  extravagance  of  that  would  be  at 
once  apparent.  Between  such  an  extreme  case  as  I  have  sup- 
posed and  other  cases,  a  great  deal  must  depend  upon  the  nature 
of  the  transaction — the  thing  to  be  done,  the  loss  likely  to  accrue 
to  the  person  who  is  endeavoring  to  enforce  the  performance 
of  the  contract,  and  so  forth.  It  is  not  necessary  to  enter  into 
a  minute  disquisition  upon  that  subject,  because  the  thing 
speaks  for  itself.  But,  on  the  other  hand,  it  is  quite  certain,  and 
an  established  principle  in  both  countries,  that  the  parties  may 
agree  before  hand  to  say,  "Such  and  such  a  sum  shall  be  dam- 
ages if  I  break  my  agreement. "     The  very  reason  why  the  parties 


168  CLASSIFICATION   OF    DAMAGES. 

do  in  fact  agree  to  such  a  stipulation  i.s  that  sometimes,  although 
imdoubtedly  there  is  damage  and  undoubtedly  damages  ought  to 
be  recovered,  the  nature  of  the  damage  is  such  that  proof  of  it  is 
extremely  complex,  difficult  and  expensive.  If  I  wanted  an 
example  of  what  might  or  might  not  be  said  and  done  in  con- 
troversies upon  damages,  imlcss  tlie  parties  had  agreed  before- 
hand, I  could  not  have  a  better  example  than  that  which  the 
learned  counsel  has  been  entertaining  us  with  for  the  last  half- 
hour  in  respect  of  the  damage  resulting  to  the  Spanish  Govern- 
ment by  the  withliolding  of  these  vessels  beyond  the  stipulated 
period.  Supposing  there  was  no  such  bargain,  and  supposing 
the  Spanish  Government  had  to  prove  damages  in  the  ordinary 
way  without  insisting  upon  the  stipulated  amount  of  them,  just 
imagine  what  would  have  to  be  the  cross-examination  of  every 
person  connected  with  the  Spanish  Administration  such  as  is  sug- 
gested by  the  commentaries  of  the  learned  counsel:  "You  have 
so  many  thousand  miles  of  coast-line  to  defend  by  your  torpedo- 
boat  destroyers ;  what  would  four  torpedo-boat  destroyers  do  for 
that  purpose?  How  could  you  say  you  are  damaged  by  their 
non-delivery?  How  many  filibustering  expeditions  could  you 
have  stopped  by  the  use  of  four  torpedo-boat  destroyers  ? ' ' 

My  Lords,  I  need  not  pursue  that  topic.  It  is  obvious  on  the 
face  of  it  that  the  very  thing  intended  to  be  provided  against  by 
this  pactional  amount  of  damages  is  to  avoid  that  kind  of  minute 
and  somewhat  difficult  and  complex  system  of  examination  which 
would  be  necessary  if  you  were  to  attempt  to  prove  the  damage. 
As  I  pointed  out  to  the  learned  counsel  during  the  course  of  his 
argument,  in  order  to  do  that  properly  and  to  have  any  real 
effect  upon  any  tribunal  determining  that  question,  one  ought  to 
have  before  one's  mind  the  whole  administration  of  the  Spanish 
Na-vy- — how  they  were  going  to  use  their  torpedo-boat  destroyers 
in  one  place  rather  than  another,  and  what  would  be  the  relative 
speed  of  all  the  boats  they  possessed  in  relation  to  those  which 
they  were  getting  by  this  agreement.  It  would  be  absolutely 
idle  and  impossible  to  enter  into  a  question  of  that  sort  unless 
you  had  some  kind  of  agreement  between  the  parties  as  to  what 
was  the  real  measure  of  damages  which  ought  to  be  applied. 

Then  the  other  learned  counsel  suggests  that  you  cannot  have 
damages  of  this  character,  because  really  in  the  case  of  a  war- 
ship it  has  no  value  at  all.  That  is  a  strange  and  soinewhHt 
bold  assertion.    If  it  was  an  ordinary  commercial  vessel  capable 


LIQUIDATED   DAMAGES   OR   PENALTY.  169 

of  being  used  for  obtaining  profits,  I  suppose  there  would  not 
be  very  much  difficulty  in  finding  out  what  the  ordinary  use  of 
a  vessel  of  this  size  and  capacity  and  so  forth  would  be,  what 
would  be  the  hire  of  such  a  vessel,  and  what  would  therefore  be 
the  equivalent  in  money  of  not  obtaining  the  use  of  that  vessel 
according  to  the  agreement  during  the  period  Vv^hich  had  elapsed 
between  the  time  of  proper  delivery  and  the  time  at  which  it  was 
delivered  in  fact.  But,  says  tbe  learned  counsel,  you  cannot 
apply  that  principle  to  the  case  of  a  warship  because  a  warship 
does  not  earn  money.  It  is  certainly  a  somewhat  bold  conten- 
tion. I  should  have  thought  that  the  fact  that  a  warship  is  a 
warship,  her  very  existence  as  a  warship  capable  of  use  for  such 
and  such  a  time,  would  prove  the  fact  of  damage  if  the  party  was 
deprived  of  it,  although  the  actual  amount  to  be  earned  by  it,  and 
in  that  sense  to  be  obtained  by  the  payment  of  the  price  for  it, 
might  not  be  veiy  easily  ascertained — not  so  easily  ascertained 
as  if  the  vessel  were  used  for  commercial  purposes  and  where  its 
hire  as  a  commercial  vessel  is  ascertainable  in  money.  But,  my 
Lords,  is  that  a  reason  for  saying  that  you  are  not  to  have  dam- 
ages at  all?  It  seems  to  me  it  is  hopeless  to  make  such  a  con- 
tention, and  although  that  would  not  in  itself  be  a  very  cogent 
argument  because  the  law  might  be  so  absurd,  yet  it  would  be 
a  veiy  startling  proposition  to  say  that  you  never  could  have 
agreed  damages  for  the  non-delivery  of  a  ship  of  war  although, 
under  the  very  same  words  with  exactly  the  same  phraseology  in 
the  particular  contract,  you  might  have  damages  if  it  was  a 
vessel  used  for  commercial  purposes;  so  that  you  would  have 
to  give  a  different  construction  to  the  very  same  words  according 
to  whether  the  thing  agreed  to  be  built  was  a  warship  or  a  ship 
intended  for  commercial  purposes.  ]\Iy  Lords,  I  think  it  is  only 
necessary  to  state  the  contention  to  show  that  it  is  utterly  un- 
sound. 

Then  there  comes  another  argument  which,  to  my  mind,  is 
more  startling  still :  the  vessel  was  to  be  delivered  at  such  and 
such  a  time ;  it  was  not  delivered,  but  the  fleet  the  Spanish  Gov- 
ernment had  was  sent  out  at  such  a  time  and  the  greater  part  of 
it  was  sunk,  and,  says  the  learned  counsel,  "If  we  had  kept  our 
contract  and  delivered  these  vessels  they  would  have  shared  the 
fate  of  the  other  vessels  belonging  to  the  Spanish  Goverment, 
and  therefore  in  fact  you  have  got  your  ships  now,  whereas  if  we 
had  kept  our  contract  they  would  have  been  at  the  bottom  of  the 


170  CLASSIFICATION    OF    DAMAGES. 

Atlantic. ' '  My  Lords,  I  confess,  after  some  experience,  I  do  not 
think  1  ever  heard  an  argument  of  that  sort  before,  and  I  do  not 
think  I  shall  often  hear  it  again.  Nothing  could  be  more  absurd 
than  such  a  contention,  wliicli,  if  it  were  reduced  to  a  compend- 
ious form  such  as  one  has  in  a  marginal  note,  would  certainly 
be  a  striking  example  of  jurisprudence.  I  think  I  need  say  no 
more  to  show  how  utterly  absurd  such  a  contention  is.  I  pass 
on  to  the  other  question. 

Lord  Davey  and  Lord  Robertson  write  concurring  opinions. 

Appeal  dismissed. 


PTE   V.   BRITISH   AUTOMOBILE    COMMERCIAL 
SYNDICATE  LIMITED. 

L.  R.  I.  K.  B.  1906,  425. 

BiGHAM,  J.  This  was  an  action  by  the  plaintiff  to  recover 
back  a  sum  deposited  by  him  with  the  defendants  on  the  making 
of  an  agreement  on  January  29,  1904.  The  plaintiff  says,  in  the 
events  which  have  happened  he  is  entitled  to  be  repaid  this  sum 
as  money  in  the  hands  of  the  defendants  to  his  use. 

The  question  depends  on  the  construction  of  the  agreement 
of  January  29,  1904.  It  has  been  described  as  an  agency  agree- 
ment, but  it  is  not  so  in  point  of  law.  It  is  an  agreement  by 
which  the  defendant  company  appointed  the  plaintiff'  to  be 
their  sole  agent  for  a  certain  district  in  Yorkshire  for  the  sale 
of  Talbot  motor  cars,  and  by  the  same  agreement  it  was  stipu- 
lated that  so  long  as  the  plaintiff  should  be  their  sole  agent  for 
that  district,  they  would  not  deliver  any  of  their  motor  cars  to 
any  person  resident  or  carrying  on  business  in  that  district. 

The  meaning  of  those  two  provisions  is,  as  I  think,  that  the 
defendants  say  that  the  plaintiff  shall  deal  in  their  motor  cars 
in  that  district,  and  that  no  one  else  shall,  so  far  as  the  defend- 
ants are  concerned,  deal  in  these  cars  in  that  district,  and  that 
the  plaintiff  shall  be  solely  entitled  to  sell  them.  It  was  never 
intended,  apparently,  that  the  plaintiff  should  sell  anything 
for  or  on  account  of  the  defendants.  He  was  not  their  agent  at 
all  but  he  himself  was  to  buy  from  them  motor  cars  at  specified 
prices,  to  be  delivered  by  the  defendants  at  certain  specified 
times.  He  was,  therefore,  to  be  a  buyer  from  the  defendants 
on  the  terms  that  the  defendants  should  not  sell  any  ears  through 
any  other  person  in  the  district,  and  if  the  plaintiff  wanted  to 


LIQUIDATED   DAMAGES   OR   PEN^UiTY,  171 

sell  more  ears,  he  was  entitled  to  have  them  from  the  defendants. 
It  was  an  agreement  that  the  defendants  should  sell  to  the  plaint- 
iff certain  cars  at  certain  prices  and  at  certain  dates  and  if  it 
was  broken  the  defendants  were  to  be  at  liberty  to  sell  their  cars 
by  other  means  in  the  district. 

Now  what  happened  was  this.  There  was  a  breach  of  the 
agreement.  [The  learned  judge  then  narrated  the  facts  on 
w^hich  he  came  to  this  conclusion,  and  continued: — ]  The  de- 
fendants then  said:  "We  now  claim  to  forfeit  the  300  1.,  the 
contract  having  been  broken.  The  question  is  whether  they  are 
entitled  to  do  so.  They  say  that  they  are,  by  reason  of  the  last 
words  in  clause  7  of  the  contract.  It  is  said  that  the  effect  of 
those  words  is  not  only  that  the  money  shall  be  repaid  on  pay- 
ment by  the  plaintiff  of  the  price  of  all  the  goods  supplied,  but 
that  it  shall  not  be  repaid  unless  they  are  all  paid  for.  I  am 
not  sure  whether  that  construction  is  right  or  not.  The  non- 
payment might  be  due  to  the  defendants'  conduct,  and  then 
they  would  clearly  not  be  entitled  to  retain  the  300  1.  If,  for 
instance,  they  were  to  tender  cars  which  were  not  in  accordance 
with  the  contract,  which  the  plaintiff,  therefore,  was  not  bound 
to  receive,  I  do  not  think  they  would  be  entitled  to  retain  the 
deposit.  It  may  be  urged  that  as  they  had  chosen  to  put  an 
end  to  the  contract,  and  so  to  prevent  the  plaintiff  from  receiv- 
ing any  more  cars,  they  have  themselves  put  it  out  of  the  plaint- 
iff's power  to  fulfill  the  contract,  and  therefore  cannot  retain 
the  300  1.  But  that  is,  I  think,  immaterial,  because  in  my  opin- 
ion the  defendants  are  entitled  to  retain  the  300  1.  under  clause  8. 

I  have  to  find  out  from  the  language  there  used  what  was 
the  intention  of  the  parties  to  tlie  contract.  If  it  were  not  for 
the  authorities  which  are  supposed  to  guide  judges  in  endeavor- 
ing to  discover  the  intention  of  the  parties,  I  should  have  no 
doubt  about  it.  The  plaintiff  put  300  1.  into  the  hands  of  the 
defendants  and  subscribed  an  agreement  which  contains  a  state- 
ment that  the  defendants  may  keep  that  sum  if  he  makes  de- 
fault in  payment.  Those  circumstances  point  only,  as  it  seems 
to  me,  to  the  intention  that  the  defendants  should  keep  the 
money  if  the  events  were  to  happen  which  have  happened.  But 
it  is  said  that  my  finding  as  to  the  intention  of  the  parties  is 
to  be  controlled  by  the  rules  which  have  been  laid  down  in  the 
authorities  which  have  been  cited.  I  think  the  only  rule  which 
applies  to  all  cases  is  that  the  judge  must  look  to  all  the  cir- 


172  CLASSIFICATION    OF    DAMAGES. 

cumstaiices  of  each  particular  contract — to  what  the  parties  did 
as  well  as  to  the  hinguage  used— and  must  say  from  them  what 
the  intention  of  the  parties  was.  No  doubt,  notwithstanding  the 
observations  of  Jessel  JM.  R.  in  Wallis  v.  Smith,  21  Ch.  D.  243,  one 
thing  to  be  taken  into  consideration  is  to  see  whether  the  sum 
agreed  to  be  paid  is  to  be  paid  on  the  happening  of  one  event  or 
of  many  events  some  of  which  may  be  of  great  and  some  of  small 
importance,  and  with  great  deference  to  the  criticism  of  Jessel 
M.  R.  in  that  case,  I  think  the  dictum  of  Lord  Coleridge  C.  J. 
in  Magee  v.  Lavell,  L.  R.  9.  C.  P.  107,  at  p.  Ill,  is  right  when  he 
said  in  the  course  of  the  argument:  "The  general  principle  of 
law  appears  to  be  that  where  the  contract  contains  a  variety  of 
stipulations  of  different  degrees  of  importance,  and  one  large 
sum  is  stated  at  the  end  to  be  paid  on  breach  of  performance 
of  any  of  them,  that  must  be  considered  as  a  penalty."  I  have 
myself  always  understood  that  that  is  one  of  the  rules  which 
must  guide  a  judge  when  he  has  to  discover  what  the  intention 
of  the  parties  was.  The  only  exception  I  would  take  to  that 
dictum  is  the  use  of  the  word  "must"  and  I  am  sure  that  Lord 
Coleridge  C.  J.  did  not  mean  to  say  that  if  other  circumstances 
existed  which  would  throw  light  on  the  intention  of  the  parties 
in  making  the  agreement  a  judge  might  not  come  to  a  contrary 
conclusion.  He  meant  only  that  this  fact  was  an  important 
matter  to  take  into  consideration  when  seeking  to  find  out  the 
intention  of  the  parties.  I  think  that  in  that  dictum  the  Chief 
Justice  correctly  laid  down  the  law  as  expressed  in  the  authori- 
ties. Here  I  think  that  this  sum  of  300  1.  is  a  sum  payable  upon 
the  happening  of  one  of  many  possible  breaches  of  different  sig- 
nificance. I  have  already  pointed  out  that  the  refusal  to  pay 
for  a  machine  the  price  of  which  was  less  than  300  1.  might  en- 
tail serious  consequences  to  the  defendants  outside  the  non- 
payment of  the  price.  It  might  make  it  necessary  for  the  de- 
fendants to  put  an  end  to  the  contract  and  to  make  different 
arrangements  for  the  sale  of  their  motor  cars  in  this  district, 
and  that  fact  may  well  have  been  in  their  minds  when  they  en- 
tered into  this  agreement.  It  is  impossible  to  say  that  the  non- 
payment of  the  price  of  a  particular  motor  car  is  the  only  dam- 
age which  the  defendants  would  sustain  from  the  plaintiff's  re- 
fusal to  accept  it.  Therefore,  although  there  are  circumstances 
here  which  seem  to  bring  the  case  within  the  rule  enunciated 
by  Lord  Coleridge  C.  J.,  there  are  other  circumstances  which 


LIQUIDATED   DAMAGES   OR   PENALTY.  173 

prevent  that  rule  from  applying.  There  is  also  this  further 
fact  that  this  agreement  does  not  merely  contain  a  stipulation 
that  in  the  event  of  a  breach  of  the  contract  the  sum  of  300  1. 
shall  be  paid  as  liquidated  damages.  The  plaintiff  here  has 
himself  already  paid  this  sum  to  the  defendants.  He  has  parted 
with  the  money,  and  that  circumstance  is  significant  to  show 
that  he  did  not  intend  to  have  it  back  if  he  committed  a  breach 
of  the  agreement.  I  pray  in  aid,  although  I  am  not  sure  that 
I  am  entitled  to  do  so,  the  language  of  Jessel  M.  R.  in  "VVallis  v. 
Smith,  supra,  where  he  says:  "Where  a  deposit  is  to  be  for- 
feited for  the  breach  of  a  number  of  stipulations,  some  of  which 
may  be  trifling,  some  of  which  may  be  for  the  payment  of  money 
on  a  given  day,  in  all  those  cases  the  judges  have  held  that  this 
rule  does  not  apply,  and  that  the  bargain  of  the  parties  is  to 
be  carried  out."  I  have  asked  council  if  they  could  find  me 
some  of  the  cases  to  which  the  INIaster  of  the  Rolls  there  referred, 
and  although  I  think  the  cases  which  have  been  cited  do  not 
clearly  support  that  remark  of  his,  I  think  that  there  is  some 
ground  for  saying  that  where  the  sum  of  money  in  question  has 
been  deposited,  that  is  a  circumstance  which  must  be  taken  into 
account  by  a  judge  in  ascertaining  the  intention  of  the  parties. 
As  to  the  exact  words  used  in  agreements  as  to  the  sum  being 
regarded  as  liquidated  damages,  and  not  as  a  penalty,  it  has 
been  laid  down  that  judges  ought  to  disregard  the  expression 
"liquidated  damages"  although  it  has  been  knowingly  used  by 
the  parties.  I  am  not  going  to  shut  my  eyes  to  that,  but  I  think 
the  expression  was  only  to  be  disregarded  in  plain  cases  where 
the  plain  intention  of  the  parties  to  be  gathered  from  all  the 
circumstances  was  that  the  sum  was  to  be  a  penalty.  That  is 
not  the  case  here,  and  so  I  cannot  see  why  I  should  not  give  the 
words  of  the  contract  their  plain  meaning.  Those  words  are 
"the  said  deposit  shall  be  forfeited  to  the  company  as  and  by 
way  of  liquidated  and  ascertained  damages." 

It  is  said  that  I  must  say  that  this  sum  was  a  penalty  because 
of  the  use  of  the  word  "forfeit."  In  my  opinion  the  use  of  that 
word  does  not  take  away  the  significance  from  the  plain  language 
of  the  parties.  I  hold,  therefore,  that  the  plaintiff  has  forfeited 
this  sum  of  300  1.,  and  that  the  defendants  are  entitled  to  judg- 
ment. Judgment  for  the  defendants. 


174  CLASSIFICATION  OF  DAMAGES. 

KEMBLE  V.  FARREN. 

Common  Pleas,  1829.    6  Bing.  141. 

TiNDAL,  C.  J.  This  is  a  rule  which  calls  upon  the  defendant 
to  show  cause  why  the  verdict,  which  has  been  entered  for  the 
plaiutiif  for  750  1.,  should  not  be  increased  to  1000  1. 

The  action  was  brought  upon  an  agreement  made  between 
the  plaintitl'  and  the  defendant,  whereby  the  defendant  agreed 
to  act  as  a  principal  comedian  at  the  Theatre  Royal,  Covent 
Garden,  during  the  four  then  next  seasons,  commencing  October, 
1828,  and  also  to  conform  in  all  things  to  the  usual  regulations 
of  the  said  Theatre  Royal,  Covent  Garden;  and  the  plaintiff 
agreed  to  pay  the  defendant  £3  6s.  8d.  every  night  on  which 
the  theatre  should  be  open  for  theatrical  performances,  during 
the  next  four  seasons,  and  that  the  defendant  should  be  allowed 
one  benefit  night  during  each  season,  on  certain  terms  therein 
specified.  And  the  agreement  contained  a  clause,  that  if  either 
of  the  parties  should  neglect  or  refuse  to  fulfill  the  said  agree- 
ment, or  any  part  thereof,  or  any  stipulation  therein  contained, 
such  party  should  pay  to  the  other  the  sura  of  £1000,  to  which 
sum  it  was  thereby  agreed  that  the  damages  sustained  by  any 
such  omission,  neglect,  or  refusal,  should  amount;  and  which 
sum  was  thereby  declared  by  the  said  parties  to  be  liquidated 
and  ascertained  damages,  and  not  a  penalty  or  penal  sum,  or 
in  the  nature  thereof. 

The  breach  alleged  in  the  declaration  was,  that  the  defendant 
refused  to  act  during  the  second  season,  for  which  breach,  the 
jury,  upon  the  trial,  assessed  the  damages  at  750  1.,  which  damages 
the  plaintiff  contends  ought  by  the  terms  of  the  agreement  to 
have  been  assessed  at  1000  1. 

It  is,  undoubtedly,  difficult  to  suppose  any  words  more  pre- 
cise or  explicit  than  those  used  in  the  agreement;  the  same  de- 
claring not  only  affirmatively  that  the  sum  of  1000  1.  should  be 
taken  as  liquidated  damages,  but  negatively  also  that  it  should 
not  be  considered  as  a  penalty,  or  in  the  nature  thereof.  And 
if  the  clause  had  been  limited  to  breaches  which  were  of  an 
uncertain  nature  and  amount,  we  should  have  thought  it  would 
have  had  the  effect  of  ascertaining  the  damages  upon  any  such 
breach  at  1000  1.  For  we  see  nothing  illegal  or  unreasonable  in 
the  parties,  by  their  mutual  agreement,  settling  the  amount  of 
damages,  uncertain  in  their  nature,  at  any  sum  upon  which  they 


LIQUIDATED  DAMAGES   OR  PENALTY.  175 

may  agree.    In  many  cases,  such  an  agreement  fixes  that  which 
is  almost  impossible  to  be  accurately  ascertained;  and  in  aU 
cases,  it  saves  the  expense  and  difficulty  of  bringing  witnesses 
to  that  point.     But  in  the  present  case,  the  clause  is  not  so 
confined;  it  extends  to  the  breach  of  any  stipulation  by  either 
party.    If,  therefore,  on  the  one  hand,  the  plaintiff  had  neglected 
to  make  a  single  payment  of  3  1.  6s.  8d.  per  day,  or  on  the  other 
hand,  the  defendant  had  refused  to  conform  to  any  usual  regu- 
lation of  the  theatre,  however  minute  or  imimportant  it  must 
have   been   contended   that  the   clause   in   question,   in    either 
case,  would  have  given  the  stipulated  damages  of  1000  1.     But 
that  a  very  large  sum  should  become  immediately  payable,  in 
consequence  of  the  non-payment  of  a  very  small  sum,  and  that 
the  former  should  not  be  considered  as  a  penalty,  appears  to 
be  a  contradiction  in  terms;  the  case  being  precisely  that  in 
which  courts  of  equity  have  always  relieved,  and  against  which 
courts  of  law  have,  in  modern  times,   endeavored   to   relieve, 
by  directing  juries  to  assess  the  real  damages  sustained  by  the 
breach  of  the  agreement.     It  has  been  argued  at  the  bar,  that 
the  liquidated  damages  apply  to  those  breaches  of  the  agreement 
only  which  are  in  their  nature  uncertain,  leaving  those  which 
are  certain  to  a  distinct  remedy,  by  the  verdict  of  a  jury.    But 
we  can  only  say,  if  such  is  the  intention  of  the  parties,  they  have 
not  expressed  it;  but  have  made  the  clause  relate,  by  express 
and  positive  terms,  to  all  breaches  of  every  kind.    We  cannot, 
therefore,  distinguish  this  case,  in  principle,  from  that  of  Ast- 
ley  V.  Weldon,  in  which  it  was  stipulated,  that  either  of  the 
parties  neglecting  to  perform  the  agreement  should  pay  to  the 
other  of  them  the  full  sum  of  200  1.,  to  be  recovered  in  his 
Majesty's  Courts  at  Westminster.     Here  there  was  a  distinct 
agreement,  that  the  sum  stipulated  should  be  liquidated  and 
ascertained  damages ;  there  were  clauses  in  the  agreement,  some 
sounding    in    uncertain    damages,    others    relating    to    certain 
pecuniary  payments;  the  action  was  brought  for  the  breach  of 
a  clause  of  an  uncertain  nature :  and  yet  it  was  held  by  the  court, 
that  for  this  very  reason  it  would  be  absurd  to  construe  the  sum 
inserted  in  the  agreement  as  liquidated  damages,  and  it  was 
held  to  be  a  penal  sum  only.     As  this  case  appears  to  us  to  be 
decided  on  a  clear  and  intelligible  principle,  and  to  apply  to 
that  under  consideration,  we  think  it  right  to  adhere  to  it,  and 
this  makes  it  unnecessary  to  consider  the  subsequent  cases,  which 


1  '  ^»  CLASSIFICATION    OF    DAMAGES. 

lio  not  iu  any  \\ay  break  in  upon  it.  The  consequence  is,  we 
think  the  present  verdict  should  stand,  and  the  rule  for  increas- 
ing the  damages  be  discharged.  Rule  discharged. 


WTLLSON  V.  MAYOR  OF  BALTIMORE. 

Maryland,  1896.     83  Md.  203. 

Appeal  from  a  pro  forma  judgment  of  the  Court  of  Common 
Pleas  of  Baltimore  City,  sustaining  a  demurrer  to  plaintiff's 
declaration. 

:\rcSHERRY,  C.  J.  The  mayor  and  city  council  of  Baltimore, 
through  the  commissioners  of  public  schools,  advertised  for 
sealed  proposals  for  furnishing  the  schools  of  the  city  with  desks 
and  other  necessary  appliances.  The  bids  were  required  to  be 
made  out  upon  forms  which  contained  various  stipulations. 
Among  these,  it  was  provided  that  "the  full  name  and  address 
of  a  surety  must  be  written  on  the  proposal,  and  each  proposal 
must  be  accompanied  by  a  certified  check  for  five  hundred  dol- 
lars, *  *  *  said  check  to  be  payable  to  the  mayor  and  city 
council  of  Baltimore.  If  the  successful  bidders  enter  into  con- 
tract, with  bond,  without  delay,  their  checks  will  be  returned, 
as  will  those  of  the  unsuccessful  bidders.  No  proposal  will  be 
entertained  which  does  not  comply  with  the  terms  hereof."  The 
appellant  filled  out  one  of  these  forms,  specified  the  prices  at 
which  he  would  furnish  the  needed  supplies,  gave  the  name  and 
address  of  his  surety,  and  enclosed  his  certified  check  for  $500, 
payable  to  the  appellee.  His  bid  being  the  lowest,  he  was 
awarded  the  contract;  but,  through  no  fault  of  his  own,  and 
though  he  acted  in  entire  good  faith,  he  was  unable,  in  spite  of 
his  efforts,  to  furnish  the  signature  of  the  surety  he  had  named 
in  his  bid,  and  he  failed,  without  being  at  all  to  blame,  to  secure 
any  other  surety  on  his  bond.  Thereupon  the  commissioners 
readvertised  for  bids,  these  being  obtained  and  accepted.  The 
new  bids  were  for  sums  much  less  than  those  named  by  the  ap- 
pellant in  his  bid,  and  in  consequence  the  city  not  only  lost  no 
money  by  the  failure  of  the  appellant  to  furnish  a  bond  and  to 
fulfill  his  contract,  but  in  fact  saved  a  considerable  amount.  The 
appellant  then  demanded  the  return  of  the  $500  which  he  had 
deposited  with  his  bid,  but  the  city  refused  to  surrender  the 
money,  and  claimed  the  right  to  hold  it.  Suit  was  thereafter 
brought  by  him  against  the  city  for  the  recovery  of  the  $500 
deposited.     *     *     * 


LIQUIDATED   DAMAGES    OR   PENALTY.  177 

On  the  part  of  the  appellant  it  is  insisted  that  the  $500  de- 
posit was  designed  to  be,  and  in  reality  was,  a  penalty,  while 
on  the  part  of  the  city  it  is  claimed  that  the  sum  named  was 
intended  to  be,  and  in  fact  was,  liquidated  or  stipulated  dam- 
ages, which,  for  any  breach  of  the  appellant's  bid  or  proposal, 
was  to  be  retained  by  the  city,  without  reference  to  whether  the 
city  had  actually  sustained  any  injury  or  not.  The  distinction 
between  a  penalty  and  liquidated  damages  is  of  the  utmost  im- 
portance, and  upon  the  decision  in  any  given  case  between  them 
depends  the  question  whether  a  sum  stipulated  to  be  paid  upon 
a  breach  of  the  contract  shall  be  treated  as  a  debt,  to  be  arbi- 
trarily enforced,  without  regard  to  the  actual  loss,  or  whether, 
on  the  other  hand,  it  shall  be  discarded,  to  let  in  an  inquiry  as 
to  the  extent  of  the  damage  really  sustained  in  consequence  of 
an  omission  or  refusal  to  perform  the  agreement.  If  the  sum 
designated  is  held  to  be  liquidated  damages,  the  only  evidence 
necessary  to  warrant  a  recovery  of  that  particular  amount  is 
that  the  contract  to  which  it  relates  has  been  broken.  But,  if 
the  sum  is  regarded  as  a  mere  penal  sum,  its  place  in  the  con- 
tract gives  it  no  weight,  and  a  recovery  for  a  breach  of  the 
undertaking  will  be  limited  to  the  extent  of  the  loss  or  injury 
actually  sustained  and  proved.  In  one  instance,  therefore,  the 
whole  of  the  sum  is  recoverable,  Avhen  there  has  been  a  default, 
though  the  actual  damages  be  nominal,  while  in  the  other  only 
such  damages  as  have  been  really  incurred,  and  are  satisfactorily 
shown,  can  be  assessed  and  awarded  for  a  breach.  It  is  obvious, 
then,  that  the  pending  controversy  turns  upon  the  question 
whether  the  $500  deposit  is  liquidated  damages,  or  a  penalty. 
If  it  be  the  former  the  plaintiff  has  no  right  to  recover  it  back, 
but  if  it  be  the  latter  the  city  cannot  lawfully  retain  it,  except 
to  the  extent  that  actual  damage  has  been  sustained.  *  *  * 
It  is  equally  well  settled  that  a  sum,  if  it  be  at  all  reasonable, 
and  is  stipulated  to  be  paid  as  liquidated  damages  for  the  breach 
of  a  contract,  will  be  regarded  as  such,  and  not  as  a  penalt3% 
where,  from  the  nature  of  the  covenant,  the  damages  arising 
from  its  breach  are  wholly  uncertain,  and  cannot  be  ascertained 
upon  an  issue  of  fact.  A  common  instance  is  the  case  of  agree- 
ments between  professional  men,  binding  a  retiring  partner,  or 
an  apprentice  or  clerk,  not  to  interfere  with  the  business  of  the 
other.  But  a  stipulation  to  pay  a  specified  sum  upon  the  non- 
performance of  a  contract  is  regarded  as  a  penalty,  rather  than 

12 


178  CLASSIFICATION   OF    DAMAGES. 

as  liquidated  damages,  if  the  iutentiou  of  the  parties  as  to  its 
effect  is  at  all  doubtful,  or  is  of  equivocal  interpretation. 
*  *  *  And  such  a  stipulation  is  generally  regarded  as  a 
penalty,  in  the  absence  of  a  clear  indication  of  a  contrary  in- 
tention by  the  parties  at  the  time  the  contract  was  executed, 
where  the  agreement  is  certain,  and  the  damages  for  a  breach 
thereof  are  easily  and  exactly  ascertainable.  Burrell  v.  Daggett, 
77  Me.  545 ;  Brown  v.  Bellows,  4  Pick.,  179.  Finally,  the  tend- 
ency of  late  years  has  been  to  regard  the  statements  of  the 
parties  as  to  liquidated  damages  in  the  light  of  a  penalty,  un- 
less the  contrary  intention  is  unequivocally  expressed,  so  that 
harsh  provisions  will  be  avoided,  and  compensation  alone  will 
be  awarded.  Gammon  v.  Hone,  14  Maine  250;  Leggett  v.  Ins. 
Co.,  53  N.  y.  394. 

Now,  it  will  be  observed  that  the  contract  between  the  appel- 
lant and  the  appellee,  evidenced  by  the  bid  filed  and  accepted, 
has  not  a  word  in  it  descriptive  of  the  $500  deposit  as  either 
liquidated  damages  or  a  penalty.  It  is  clear,  therefore,  that  the 
parties  themselves  have  not,  by  any  term  or  povision  of  the 
agreement,  declared  that  the  deposit  shall  be  either  the  one  or 
the  other,  but  have  left  the  question  at  large ;  and  it  is  equally 
clear  that  there  is  nothing  in  the  subject-matter  of  the  agree- 
ment which  imperatively  requires  that  the  deposit  be  character- 
ized as  liquidated  damages,  especially  as  the  decided  inclination 
of  the  court,  in  doubtful  cases  even,  is  to  treat  the  stipulated 
sum  as  merely  a  penalty.  Indeed,  there  is  no  explicit  forfeit- 
ure of  the  deposit  at  all.  The  contract  provides  simply  that 
"if  the  successful  bidders  enter  into  contract,  with  bond,  with- 
out delay,  their  checks  will  be  returned;"  but  it  is  nowhere  ex- 
pressly declared  that  a  failure  to  enter  into  bond  shall  entitle 
the  city  to  the  whole  amount  of  the  deposit,  or  to  any  part  of  it, 
though  it  is  palpably  implied  that  so  much  of  it  as  will  be  a 
just  compensation  for  any  loss  that  may  result  to  the  city  from 
the  failure  of  the  bidder  to  furnish  the  bond  was,  in  view  of 
the  whole  subject-matter,  designed  by  the  parties  to  be  applied 
by  the  city  to  its  own  reimbursement.  But  beyond  this,  the 
exact  amount  of  loss  which  would  result  to  the  city  by  the  failure 
of  a  bidder  to  give  the  required  bond  is  capable  of  definite 
ascertainment.  A  failure  to  give  the  bond  is  a  breach  of  the 
contract,  and  the  damages  which  would  result  from  that  breach 
would  be  the  amount  the  city  paid,  if  anything,  in  excess  of  the 


LIQUIDATED   DAMAGES   OR   PENALTY.  179 

amount  of  the  unexecuted  bid,  and  also  the  expenses  of  a  read- 
vertising  for  new  bids.  These  elements  of  damage  are  neither 
uncertain,  nor  difficult  of  ascertainment  by  a  jury,  and  this  fact 
is  one  of  the  recognized  tests  resorted  to  for  distinguishing  be- 
tween liquidated  damages  and  a  penalty.  Geiger  v.  Eailroad 
Co.,  41  Md.  4.  Not  only,  then,  is  there  no  provision  expressly 
declaring  this  deposit  to  be  liquidated  damages,  but  to  treat 
it  as  such  would  require  the  superaddition,  by  implication,  of 
a  distinct  term  to  the  contract,  which  is  not  permissible,  and  the 
reversal  of  the  doctrine  that  courts  lean  strongly  against  up- 
holding a  specified  sum  as  liquidated  damages  where  such  an 
interpretation  is  of  doubtful  accuracy  and  leads  to  manifest  in- 
justice. That  an  interpretation  which  treats  this  deposit  as 
liquidated  damages  would,  to  say  the  least,  be  of  doubtful  ac- 
curacy, cannot  be  disputed.  That  it  would  be  unjust,  in  this 
particular  case,  in  its  results,  is  scarcely  open  to  discussion. 
The  appellant  is  conceded  to  have  acted  in  perfect  good  faith. 
The  city  has  not  only  not  lost  anything  by  his  failure  to  give  the 
bond,  but  it  has  actually  gained  thereby  a  considerable  sum ;  and 
it  would  be  unconscionable  (Cutler  v.  How,  8  Mass.  257)  under 
these  conditions,  for  it  to  retain  the  $500  as  stipulated  and  liq- 
uidated damages  for  a  technical  breach  which  has  occasioned 
no  appreciable  injury.  We  discover  nothing  on  the  face  of  the 
contract,  nothing  in  all  the  surrounding  circumstances  on  the 
subject-matter,  and  nothing  in  the  rules  of  law,  which  will  jus- 
tify us  in  holding  this  deposit  to  be  liquidated  damages,  unless 
the  remaining  proposition  to  be  considered  sustains  the  appellee 's 
contention.  That  proposition  is  that  where  a  sum  is  deposited, 
either  with  a  third  person,  or  with  the  other  party  to  the  con- 
tract, it  is  invariably  treated  as  liquidated  damages;  and  the 
cases  of  Wallis  v.  Smith,  21  Ch.  Div.  250,  Hinton  v.  Sparkes, 
L.  R.  3  C.  P.  161,  and  some  others,  have  been  referred  to. 
*  *  *  These  cases,  and  others  to  which  allusion  might  be 
made,  relate  to  a  different  class  of  contracts.  Where  parties 
contract,  as  they  frequently  do  by  a  condition  of  sale,  that  the 
deposit  money  shall  be  forfeited  if  the  purchaser  fail  to  carry 
out  his  contract,  the  deposit  cannot,  nor  can  any  part  of  it,  be 
recovered  back  on  the  ground  that  the  forfeiture  was  in  the 
nature  of  a  penalty,  and  the  actual  loss  to  the  vendor  was  less 
than  the  amount  of  the  deposit.  In  fact,  the  cases  distinguish- 
ing between  a  penalty  and  liquidated  damages  do  not  apply  to 


180  CLASSIFICATION    OP    DAMAGES. 

a  poi'imiaiy  deposit,  which  is  in  reality  not  a  pledge,  but  a  pay- 
ment in  part  of  the  purchase  money,  Wood,  Mayne,  Dam.  §  245 ; 
Sugd.  Ven.  &  Pur.  e.  1,  §§  3,  18.     *     *     * 

It  is  stated  with  great  clearness  and  accuracy  by  Mr.  Brantly, 
in  his  admirable  work  on  the  Law  of  Contract  (page  192),  that, 
"when  it  is  provided  that  the  sum  deposited  in  part  perform- 
ance of  the  contract  is  to  be  forfeited  upon  failure  of  the  party 
to  complete  it,  such  sum,  if  not  excessive,  is  liquidated  dam- 
ages." Conversely,  if  the  deposit  be  not  made  in  part  perform- 
ance of  the  contract,  but  be  collateral  to  the  contract,  and  a  mere 
guaranty  that  its  provisions  will  be  observed,  and  if  the  making 
of  the  deposit  is  not  a  part  of  the  thing  to  be  done  under  or  in 
execution  of  the  contract,  but  is  required  simply  and  solely  as 
a  condition  precedent  to  entering  into  the  contract,  which  dis- 
tinctly relates  to  something  else,  then,  obviously,  such  a  deposit 
would  not  be  treated  as  liquidated  damages  merely  because  it 
is  a  deposit,  but  would  be  either  liquidated  damages,  or  a  pen- 
alty, as  the  niles  applicable  to  such  a  question  might  cause  the 
court  to  determine. 

We  are  not  prepared  to  expand  the  doctrine  relating  to  de- 
posits made  on  the  purchase  of  land  by  applying  it  to  contracts 
of  the  character  now  before  us.  The  deposit  in  the  case  at  bar, 
when  made,  was  not  part  of  a  sum  ultimately  payable,  under 
the  contract,  to  the  city  by  the  appellant,  nor  was  it  set  apart, 
either  in  express  terms  or  impliedly,  to  meet  an  obligation  aris- 
ing out  of  a  purchase ;  but  it  was  designed  to  serve  precisely  the 
same  purpose  that  a  guaranty  or  other  indemnity  would  have 
done, — to  save  the  city  harmless  from  any  actual  loss  which 
might  arise  or  grow  out  of  a  failure  on  the  part  of  a  bidder  to 
furnish  a  bond  conditioned  for  the  performance  of  his  accepted 
proposal.  It  would  introduce  a  sweeping  departure  from  estab- 
lished principles  to  hold,  as  an  imbending  rule  applicable  alike 
to  all  contracts,  no  matter  what  their  nature  or  subject,  that  a 
deposit  made  to  secure  their  due  performance  must  invariably 
be  treated  as  liquidated  damages,  and  never  as  a  penalty.  Such 
a  rule  w^ould,  in  its  application,  ignore  or  arbitrarily  override 
all  other  principles  of  interpretation,  and  would  force  courts  to 
regard  as  liquidated  damages  sums  which  obviously  would  not, 
according  to  the  canons  of  construction  to  which  we  have  alluded, 
ordinarily  be  so  considered.     *     *     * 

Finally  it  was  insisted  that  when  an  agreement  is  in  the  al- 


LIQTJIDATED    DAMAGES    OR   PENALTY.  181 

ternative — to  do  some  particular  thing  or  to  pay  a  given  sum 
of  money — the  court  will  hold  the  party  failing  to  have  had  his 
election,  and  compel  him  to  pay  the  money.  Railroad  Co.  v. 
Reichert,  58  Md.  278,  and  Sedg.  on  Dam.  §  423,  were  relied  on 
to  support  this  doctrine.  The  case  in  58  Md.  certainly  does  lay 
down  the  rule  contended  for,  but  the  state  of  facts  to  which 
the  rule  was  there  applied  is  totally  different  from  the  facts 
of  this  case.  There  Reichert  owned  a  coal  yard,  and  a  trestle 
connecting  it  with  a  railroad.  Another  railroad  company,  need- 
ing part  of  his  land  for  the  construction  of  its  road,  condemned 
it.  The  construction  of  its  road  required  that  the  trestle  should 
be  removed.  The  jury  of  condemnation  awarded  $600  damages, 
and  further  awarded  that  the  condemnmg  road  should  erect  for 
Reichert  another  trestle,  and  then  provided  in  the  inquisition 
that  upon  its  failure  to  comply  it  should  pay  the  further  sum 
of  $1,500.  This  inquisition  was  accepted  by  both  parties,  and 
was  ratified  by  their  consent.  The  railroad  company  then 
neglected  to  build  the  trestle,  and  Reichert  brought  suit.  This 
court  held  that  the  award  of  $1,500  was  not  a  penalty;  that  the 
jury  of  inquisition  had  fixed  the  sum  to  be  paid  if  the  company 
failed  to  construct  the  trestle;  and  that  the  alternative  thus 
given  and  accepted  by  the  agreement  of  the  parties  bound  the 
company  to  perform  the  conditions  upon  which  it  took  Reichert 's 
property,  or  to  pay  the  sum  Avhich  the  jury  fixed,  and  the  parties 
agreed  to,  in  lieu  of  a  compliance  with  the  inquisition.  There  is 
in  the  pending  case  no  alternative  agreement  at  all, — certainly 
no  express  or  unequivocal  one;  and,  before  the  doctrine  sanc- 
tioned in  58  Md.  can  be  applied,  there  must,  by  sheer  construc- 
tion, be  imported  into  the  proposal  or  bid  which  the  appellant 
made  a  term  that  is  not  there  now, — a  stipulation  either  to  sign 
the  bond  with  a  surety,  or  to  pay  $500.  For  the  purpose  of  de- 
claring the  deposit  to  be  liquidated  damages,  the  contract  actually 
made  would  have  to  be  changed  into  a  totally  different  agree- 
ment.    This,  of  course,  cannot  be  done.     *     *     * 

Judgment  reversed  with  costs  above  and  below  and  new  trial 
awarded. 


182  CLASSIP^ICATION    OF    DAMAGES. 

CAESAR  V.  RUBINSON. 

Xew  York.  1003.     174  N.  Y,  492. 

O'Brien,  J.     This  was  an  action  to  recover  a  sum  of  money 
which  was  deposited  with  the  defendants  under  the  following 
circumstances  and  conditions:  On  the  27th  of  January,  1899, 
the  defendants  entered  into  a  written  agreement  with  certain 
persons,  named  Goldberg  and  Goldstein,  which  took  the  form  of 
a  lease,  whereby  the  defendants,  as  landlords,  undertook  to  erect 
upon  their  lands  in  the  city  of  New  York  a  three-story  brick 
building,  containing  stores  and  a  dance  hall,  with  gallery,  and 
lodge   and  meeting  rooms.     Goldberg  and  Goldstein,  on  their 
part  agreed  to  take  possession  as  tenants  of  the  property  as  soon 
as  the  premises  were  ready  for  use  and  occupation,  which  was  to 
be  not  later  than  March  1,  1900,  and  to  continue  in  possession 
for  a  term  of  10  years.     They  were  to  pay  an  annual  rental  of 
$3,300,  in  monthly  payments  of  $275  on  the  1st  day  of  each 
month.     There  was  no  provision  in  the  lease  for  any  security 
for  the  payment  of  the  rent,  or  for  the  carrying  out  of  the  agree- 
ment on  the  part  of  the  owners,  but  the  instrument  contained  the 
following  provisions:  "The  said  tenants  shall  deposit,  and  have 
deposited,  with  said  landlords  the  sum  of  one  thousand  dollars, 
the  receipt  whereof  is  hereby  acknowledged,  as  security  for  the 
faithful  performance  of  this  agreement  on  their  part,  and  in 
case  of  any  breach  thereof  by  said  tenants  said  amount  shall  be 
paid  and  retained  by  said  landlords  as  liquidated  damages  for 
such  breach,  but  in  case  the  actual  damages  suffered  by  said 
landlords  through  such  breach  shall  be  greater  than  said  sum 
of  one  thousand  dollars  then  said  sum  shall  be  applied  on  ac- 
count of  such  damage  and  said  tenants  be  still  liable  for  the 
balance  thereof.     Interest  at  the  rate  of  six  per  cent,  shall  be 
paid  and  allowed  by  the  landlords  to  the  tenants  on  said  sum 
of  one  thousand  dollars  from  the  beginning  of  the  term,  such 
interest  to  be  deducted  from  the  monthly  rent  to  be  paid  as 
hereinbefore  provided;  and  that  this  agreement  and  all  coven- 
ants thereunder  shall  be  well  and  faithfully  kept  and  performed 
by  said  tenants,  then  said  sum  shall  be  held  by  said  landlords, 
and  shall  be  applied  in  part  payment  of  the  rent  for  the  last 
four  months  of  the  terra  hereinbefore  provided  for.     *     *     * 
The  said  landlords  do  hereby  covenant  that  said  tenants  on  pay- 
ing the  said  yearly  rent  and  on  performing  the  conditions  and 


LIQUIDATED   DAMAGES   OR   PENALTY.  183 

covenants  hereinbefore  provided  for  shall  and  may  peaceably 
and  quietly  have,  hold  and  enjoy  the  said  demised  premises  for 
the  time  aforesaid.  And  in  case  said  landlords  shall  fail  to  erect 
said  buildings  hereinbefore  provided  for,  then  said  landlords 
shall  pay  to  said  tenants  the  sum  of  one  thousand  dollars  in  ad- 
dition to  the  deposit  to  be  returned  as  the  agreed,  settled,  and 
liquidated  damages."  Everything  appears  to  have  been  car- 
ried out  in  the  first  instance  according  to  the  agreement.  The 
building  was  erected,  and  the  tenants  took  possession  of  the 
same,  continued  to  occupy  the  premises,  and  to  pay  rent  until 
about  the  1st  of  May,  1901,  at  which  time  they  defaulted  in  the 
payment  of  $45  of  the  rent  for  the  previous  month.  Thereupon 
the  defendants,  as  landlords,  instituted  summary  proceedings 
against  the  tenants  under  the  statute,  and  dispossessed  them. 
The  tenants  subsequently  assigned  to  this  plaintiff  the  $1,000 
which  had  been  deposited  pursuant  to  the  provisions  of  the  lease ; 
and  this  action  was  commenced  to  recover  that  amount,  less  the 
$45,  balance  of  rent  unpaid  at  the  time  the  tenants  were  dis- 
possessed. At  the  trial,  judgment  was  directed  in  favor  of  the 
plaintiff ;  but  the  Appellate  Division,  upon  appeal,  by  a  divided 
court,  reversed  the  judgment  and  granted  a  new  trial. 

The  principal  question  involved  upon  this  appeal  is  whether 
the  $1,000  deposited  by  the  tenants  as  above  set  forth  is  to  be 
regarded,  under  the  circumstances,  as  liquidated  damages  which 
the  landlords  were  entitled  to  retain  upon  entering  into  pos- 
session of  the  demised  premises.  The  circumstance  that  the 
deposit  is  described  in  the  lease  as  liquidated  damages  for  a 
breach  of  the  agreement  is  not  at  all  conclusive.  The  character 
of  the  deposit — whether  liquidated  damages  or  a  penalty — de- 
pends upon  the  intention  of  the  parties,  as  disclosed  by  the  situ- 
ation and  by  the  terms  of  the  instrument.  The  deposit  is  not 
necessarily  to  be  regarded  as  liquidated  damages,  although  it  is 
expressly  so  stated  in  the  instrument.  Whether  it  is  that  or  a 
penalty  depends  upon  the  nature  of  the  transaction  and  the 
intention  of  the  parties.  This  has  been  frequently  held  in  the 
case  of  an  ordinary  lease,  and  where  the  amount  was  largely  out 
of  proportion  to  the  damages  suffered  by  the  breach  of  the  lease. 
Chaude  v.  Shepard,  122  N.  Y.  397.  A  provision  in  a  contract 
such  as  that  now  under  consideration  will  be  treated  as  liqui- 
dated damages  only  in  those  cases  where  from  the  nature  of 
the  transaction,  the  actual  damages  consequent  upon  a  breach  of 


184  CLASSIFICATION   OF   DAMAGES. 

the  contract  arc  incapable  of  accurate  measurement,  or  where 
the  sum  specified  in  the  instrument  is  not  out  of  all  proportion 
to  any  daniages  which  could  possibly  arise  from  a  breach.  In 
the  cases  where  these  general  features  do  not  exist,  the  tendency 
of  the  courts  is  to  treat  the  stipulation  not  as  providing  for  liqui- 
dated damages,  but  in  the  nature  of  a  penalty.  Where  the 
language  of  such  a  provision  specifying  the  amount  of  damages 
to  be  paid  in  case  of  a  breach  of  the  contract  is  clear  and  ex- 
plicit to  that  effect,  the  amount  is  to  be  deemed  liquidated  dam- 
ages when  the  actual  damages  contemplated  at  the  time  the 
agreement  was  made  are  in  their  nature  uncertain  and  unas- 
certainable  with  exactness,  and  may  be  dependent  upon  extrinsic 
considerations  and  circumstances,  and  the  amount  is  not,  on  the 
face  of  the  contract,  out  of  all  proportion  to  the  probable  loss. 
Curtis  V.  Van  Bergh,  161  N.  Y.  47 ;  Ward  v.  Hudson  River  Bldg. 
Co.,  125  N.  Y.  230. 

The  onl}''  breach  of  the  lease  which  the  defendants  assert  as 
a  groimd  for  retaining  the  deposit  is  the  omission  of  the  ten- 
ants to  pay  the  $45  of  the  monthly  rent.  In  all  other  respects 
the  covenants  of  the  lease  were  kept  and  performed.  In  order 
to  uphold  the  judgment,  we  must  hold  that  it  was  the  intention 
of  the  parties  when  making  the  contract  that  for  such  a  breach 
the  entire  deposit  was  to  be  forfeited  to  the  landlords.  There 
is  no  inherent  difficulty  in  measuring  the  legal  damages  which 
the  landlord  sustained  in  a  case  where  the  tenant  omits  to  pay 
the  rent,  and  is  for  that  reason  dispossessed.  The  rule  of  dam- 
ages in  such  cases  is  quite  well  settled.  It  is  not  claimed  in  this 
case  that  the  landlords  sustained  any  other  damages  beyond  the 
loss  of  the  rent,  and  that  was  allowed  at  the  trial  and  deducted 
from  the  deposit.  In  the  absence  of  anything  in  the  record  to 
the  contrary,  the  presumption  is  that  the  landlord  resumed  the 
possession  of  the  demised  premises,  or  relet  them  for  the  same 
or  for  a  larger  rental;  and,  if  so,  it  is  difficult  to  see  why  he 
should  be  entitled  to  have  the  leased  premises  and  the  deposit 
at  the  same  time.  He  was  not  bound  to  take  possession,  but 
could  have  exhausted  the  deposit  by  applying  it  upon  the  arrears 
of  rent  from  time  to  time  as  it  fell  due.  But  having  elected  to 
re-enter,  it  would  seem  to  be  unjust  to  permit  him  to  have  the  use 
of  the  premises,  and  the  deposit  of  $1,000  besides,  especially 
where  there  is  no  claim  that  any  damages  were  sustained  be- 
yond the  loss  of  the  unpaid  rent.     This  is  therefore  a  case  where 


LIQUIDATED   DAMAGES   OR   PENALTY.  185 

the  damages  sustained  by  reason  of  the  breach  of  the  lease  in 
the  failure  to  pay  the  stipulated  rent  could  have  been  easily  as- 
certained; and,  when  ascertained,  it  is  out  of  all  proportion 
to  the  deposit  retained  under  the  claim  that  it  was  liquidated 
damages.  It  is  declared  by  the  stipulation  in  the  lease  that  the 
amount  specified  therein  should  not  be  regarded  as  liquidated 
damages  if  the  landlord's  loss  exceed  that  sura,  but  in  such  event 
it  should  be  applicable  upon  the  actual  damages,  whatever 
they  were  foimd  to  be.  It  is  difficult  to  believe  that  the  par- 
ties intended  that  the  deposit  should  have  one  character  as  to 
the  landlord,  and  another  character  as  to  the  tenant ;  that  as  to 
the  former  it  w^as  not  liquidated  damages,  but  was  as  to  the  lat- 
ter, A  provision  in  a  lease  in  regard  to  liquidated  damages,  such 
as  the  one  in  question,  that  is  not  mutually  binding  on  both 
parties,  should  not  be  enforced  against  one  of  them  unless  the 
facts  and  circumstances  are  such  as  to  make  it  entirely  clear 
that  such  was  the  purpose  of  the  stipulation.  I  am  unable  to 
distinguish  this  case  in  principle  from  those  in  which  this  court 
has  passed  upon  provisions  of  a  similar  character  in  leases  or 
agreements  between  landlord  and  tenant.  Chaude  v.  Shepard, 
supra ;  Scott  v.  Montells,  109  N.  Y.  1.  In  these  cases  it  was  held 
that  the  deposit  was  intended  as  security  for  the  performance 
of  the  covenants  of  the  lease,  and  not  as  liquidated  damages. 

The  entry  of  the  landlord  under  the  warrant  issued  upon  the 
judgment  in  the  proceedings  to  dispossess  the  tenants  for  failure 
to  pay  the  $45  canceled  the  lease,  and  annulled  the  relation  of 
landlord  and  tenant.  "When  the  landlord  elected  to  assert  that 
right,  he  waived  all  claim  to  the  deposit,  except  so  far  as  it  was 
necessary  to  apply  it  in  payment  of  rent  then  due  or  accrued. 
Code  Civ.  Proc.  §  2253;  2  Taylor's  Landlord  &  Tenant,  §  725. 

If  these  views  are  correct,  it  follows  that  the  landlord  was  not 
entitled,  under  the  circumstances  of  this  case,  to  retain  the  de- 
posit. The  order  of  the  Appellate  Division  should  therefore  be 
reversed,  and  the  judgment  of  the  trial  court  affirmed,  with  costs. 

Parker,  C.  J.,  and  Gray,  Martin,  Vann,  Cullen,  and  Werner, 
JJ.,  concur. 

Order  reversed,  etc. 

"Mere  inequality,"  say  Lord  Chief  Justice  Eldon,  in  Astley  v.  Weldon. 
2  Bros.  &  P.  340,  "is  not  ground  of  relief;  the  inequality  must  be  so 
gross  that  a  man  would  start  at  the  bare  mention  of  it." 

"If  a  party  agrees  to  pay  flOOO  on  several  events,  all  of  which  are 


186  CLASSIFICATION    OP    DAMAGES. 

capable  of  accurate  valuation,  the  sum  must  bo  construed  as  a  penalty 
and  not  as  liquidated  damages."  Baron  Parke  in  Atkins  v.  Kinniei-,  L. 
R.  4  Exch.  770. 

•'Courts  of  justice  will  not  recognize  or  eaiforce  a  contract,  or  any 
stipuation  of  a  contract,  clearly  unjust  and  unconscionable."  Chbis- 
TiANCY,  J.  in  Jaquitb  v.  Hudson,  T)  Mich.  323. 

"A  sum,  if  it  be  at  all  reasonable,  and  is  stipulated  to  be  paid  as 
liquidated  damages  for  the  breach  of  a  contract,  will  be  regarded  as 
such,  and  not  as  a  penalty,  where,  from  the  nature  of  the  covenant,  the 
damages  arising  from  its  breach  are  wholly  uncertain,  and  cannot  be 
ascertained  upon  an  issue  of  fact."  McShebry,  C.  J.  in  Willson  v. 
Baltimore,  S3  Md.  203. 

In  an  action  on  a  replevin  bond  it  was  held  by  Peters,  J.  in  Wyman 
V.  Robinson,  73  Me.  3S4,  that  when  the  damages  exceed  the  penalty  of 
the  bond,  the  recovery  may  exceed  the  penalty  so  far  as  to  include  in- 
terest. 

The  amount  of  damages  may  be  fixed  by  the  parties  in  advaace.  The 
court  will  look  into  the  question  whether  it  is  liquidated  damages.  "The 
name  by  which  it  is  called  is  of  but  slight  weight."  Kunkle  v.  Wherry, 
189  Pa.  198. 

See  also,  on  the  subject  of  penalty  and  liquidated  damages,  Burgeon 
V.  Johnson,  194  Pa.  61;  Watson  v.  Russell,  149  N.  Y.  388;  Emery  v. 
Boyle,  200  Pa.  249, 

"If  the  sum  would  be  very  enormous  and  excessive  considered  as 
liquidated  damages,  it  shall  be  taken  to  be  a  penalty  though  agreed  to 
be  paid  in  the  form  of  a  contract." — Lord  Eldon,  C.  J.  in  Astley  v. 
Wei  don,  2  Bos.  &  P.  346. 

Clauses  of  liquidation  will  be  sustained  if  limited  to  breaches  that 
are  of  an  uncertain  nature  and  amount.  Donovan  v.  Hananer,  32 
Utah  317. 

Though  the  word  penalty  is  used  in  the  contract,  and  a  single  act  is 
forbidden,  still,  if  upon  a  breach  it  is  not  possible  to  estimate  the  dam- 
ages, the  sum  named  may  be  regarded  as  liquidated  damages.  Robin- 
son V.  Centenary  Fund,  68  N.  J.  L.  723. 

"Where  one  party  to  a  contract  is  himself  responsible,  in  whole  or  in 
part  for  a  delay  in  completion  at  the  date  fixed  by  the  contract,  the  pro- 
vision for  liquidated  damages  is  abrogated,  the  question  becomes  one  of 
completion  within  a  reasonable  time  *  *  *  and  actual  damages  only 
can  be  recovered." — Dowling,  J.  in  Holland  Torpedo  Boat  Co.  v.  Nixon, 
61  Misc.  469. 

"Although  parties  in  express  and  explicit  terms  provide  that  the  sum 
agreed  to  be  paid  shall  be  liquidated  damages,  and  not  a  penalty,  the 
courts  have  held,  notwithstanding  such  an  expression  of  intent  that  the 
sum  was  a  penalty."  City  of  New  Britain  v.  New  Britain  Tel.  Co.  74 
Conn.    326. 


PROSPECTIVE   DAMAGES.  187 

8.     Prospective  Damages. 
BOWERS  V.  MISSISSIPPI  &  R.  R.  BOOM  CO. 

Minnesota,  1899.     78  Minn.  398. 

The  defendant,  in  1887,  placed  certain  piling  in  the  river  op- 
posite plaintiff's  farm,  which  turned  the  current  from  its  natural 
-course  and  upon  plaintiff's  land,  washing  away  the  shores.  The 
plaintiff  brought  an  action  in  1895,  and  recovered  a  judgment, 
which  was  satisfied.  In  that  action  prospective  damages  were 
not  claimed  nor  assessed.  Four  more  acres  since  that  time  have 
been  washed  away,  and  this  action  was  brought  in  1899  to  re- 
cover damages  therefor. 

Start,  C.  J.  *  *  *  The  plaintiff  was  bound  to  recover  in 
his  first  action  all  the  damages  which  he  was  entitled  to ;  and  if 
he  was  then  entitled  to  recover  for  all  injuries,  past,  present,  and 
future,  to  his  land,  by  reason  of  the  acts  of  the  defendant  in 
placing  and  maintaining  the  piling  in  the  river,  the  judgment  in 
the  prior  action  is  a  bar  to  this  one ;  for  the  plaintiff,  if  such 
were  the  case,  could  not  split  up  his  cause  of  action,  and  recover 
a  part  of  his  damages  in  the  first  action  and  then  bring  this 
action  for  the  rest  of  them.  The  defendant  claims  that  the  first 
action  was  just  such  a  case,  and  that  the  trial  court  correctly 
held  the  judgment  to  be  a  bar. 

The  test,  whether  an  injury  to  real  estate  by  the  wrongful 
act  of  another  is  permanent  in  the  sense  of  permitting  a  recov- 
ery of  prospective  damages  therefor,  is  not  necessarily  the  char- 
acter, as  to  permanency,  of  the  structure  or  obstruction  causing 
the  injury,  but  the  test  is  whether  the  whole  injury  results  from 
the  original  wrongful  act,  or  from  the  wrongful  continuance  of 

the  state  of  facts  produced  by  such  act.     (Citing  authorities.) 
*     *     * 

The  adjudged  eases  are  agreed  as  to  the  abstract  rule  that, 
where  the  injury  wholly  accrues  and  terminates  when  the  wrong- 
ful act  causing  it  is  done,  there  can  be  but  one  action  for  the 
redress  of  the  injury.  But,  where  the  injury  is  in  the  nature  of 
a  continuing  trespass  or  nuisance,  successive  actions  may  be 
maintained  for  the  recovery  of  the  damages  as  they  accrue.  In 
the  application  of  the  rule,  however,  the  authorities  are  some- 
what conflicting. 

Fortunately,  we  are  relieved  from  any  uncertainty  as  to  the 


188  CLASSIFICATION   OP   DAMAGES. 

application  of  the  rule  to  the  facts  of  this  case  by  the  decisions 
of  this  court ;  for  they  conclusively  establish  the  proposition  that 
the  acts  of  the  defendant,  in  placing  and  maintaining  the  piling 
in  the  river,  whereby  the  water,  logs,  and  ice  were  driven  upon 
the  shore  of  the  plaintiff's  land,  were  in  the  nature  of  a  continu- 
ing trespass  or  nuisance,  and  that  successive  actions  may  be 
brought  for  the  damages  as  they  accrue.     *     *     * 

The  act  of  the  defendant  in  the  ease  at  bar,  in  placing  and 
maintaining  the  piling  in  the  river  was,  whatever  it  may  have 
been  as  to  the  public,  as  to  the  plaintiff  a  continuing  trespass 
or  nuisance,  and  he  was  entitled  to  bring  successive  actions  to 
recover  his  damages  as  they  accrued.  It  follows  that  the  trial 
court  erred  in  holding  the  former  judgment  a  bar. 

Order  reversed  and  a  new  trial  granted. 


CEIGLER  V.  HOPPER-MORGAN  CO. 

New  York,  1904     90  App.  Div.  379. 

Stover,  J. :  The  action  is  one  of  negligence,  and  is  brought 
by  the  father  to  recover  for  the  loss  of  services  of  an  infant  son. 

The  son  was,  at  the  time  of  the  accident,  fifteen  and  one-half 
years  old,  and  was  engaged  in  operating  a  machine  which  was 
used  for  cutting  pads.  A  knife  was  put  in  motion  by  throwing 
the  machinery  in  gear,  and  when  once  in  motion,  would  descend 
and  do  its  work.  The  claim  is  that  the  machine  was  out  of  re- 
pair ;  that  the  knife  was  not  stopped  when  it  had  performed  its 
work,  but  w^as  operated  the  second  time,  and  came  in  contact 
with  the  hand  of  the  boy  so  as  to  cut  off  his  hand  at  the  wrist. 

The  judgment  must  be  reversed  for  errors  committed  at  the 
trial.  The  trial  judge,  after  discussing  the  right  of  the  plain- 
tiff to  recover  at  all  in  the  action,  charged  the  jury  upon  the 
question  of  damages  as  follows: 

If  you  reach  the  question  of  damages,  the  question  of  the 
amount  that  the  father  can  recover  for  the  loss  of  the  services 
of  the  son,  you  can  allow  to  the  father,  the  plaintiff  in  this  case, 
all  the  actual  loss  sustained  by  reason  of  this  injury  to  the  child, 
and  illness,  including  his  own  services  in  taking  care  of  him, 
his  neglect  of  business  in  consequence  of  the  child's  illness,  and 
the  necessary  charges  for  medical  services,  medicine,  nursing, 
and  all  the  necessary  expenses  and  loss  incurred,  as  the  natural 
and  approximate  result  of  the  injury;  and  also  his  prospective 


PROSPECTIVE  DAMAGES.  189 

loss  by  being  deprived  of  the  child's  services  during  the  re- 
mainder of  his  minority,  as  well  as  the  probable  prospective  loss 
from  being  compelled  to  support  the  child  in  consequence  of  the 
injury." 

The  defendant's  counsel  excepted  to  this  portion  of  the  charge, 
and  the  court  remarked,  "That  is  broad  enough  to  cover  my 
charge.  I  charged  what  I  understood  to  be  the  general  rule." 
So  the  court  distinctly  charged  that  the  plaintiff  was  entitled 
to  recover  for  the  maintenance  of  the  child  after  he  became  twen- 
ty-one years  of  age. 

The  court  may  have  been  led  into  this  error  by  assuming  that 
the  obligation  was  upon  the  parent  to  support  the  child  who 
was  unable  to  support  himself.  But  if  the  plaintiff's  son  has 
been  injured,  the  son  would  have  a  right  of  action  against  the 
defendant,  and  be  entitled  to  recover  in  his  action  for  the  injury 
he  has  sustained;  and  in  that  recovery  would  be  included  the 
damages  by  reason  of  the  loss  of  the  arm.  One  of  the  circum- 
stances which  would  tend  to  increase  the  damages  would  be  that 
he  would  be  unable  to  work  and  support  himself,  and  a  money 
judgment  would  be  awarded  for  that  element  of  it. 

The  father  would  not  ordinarily  be  bound  to  support  the 
young  man  after  his  arrival  at  twenty-one  years  of  age,  and  it 
might  be  that  the  young  man  would  be  self-supporting,  not- 
withstanding the  loss  of  his  arm,  and,  without  proof  of  his  finan- 
cial condition  in  this  action,  it  could  not  be  assumed  that  the 
father  would  have  to  maintain  him. 

It  was  also  error,  we  think,  to  charge  that  the  father  could 
recover  for  his  loss  of  time,  for  his  own  services  in  taking  care 
of  the  child,  and  also  for  neglect  of  business  in  consequence  of 
the  child's  illness.     (Barnes  v.  Keene,  132  N.  Y.  13.) 

There  was  no  proof  as  to  the  amount  of  loss  to  his  business, 
and  such  proof  would  have  been  inadmissible  in  any  event. 

As  the  case  must  be  reversed  for  these  errors,  we  do  not  dis- 
cuss the  other  questions  raised  upon  the  appeal. 

All  concur. 

Prospective  damages  to  be  rocoverable  must  be  such  as  it  is  reason- 
ably certain  will  result  from  the  injury.  Filer  v.  N.  Y.  C.  R.  R. 
49  N.  Y.  42. 

Prospective  damages  are  allowed  for  coutinuing  nuisances,  trespasses 
and  torts  generally.  Lahr  v,  Metropolit:!n  R.  R.  104  N.  Y.  268;  Uline  v. 
R.  R.  Co.  101  N.  Y.  9S. 


190  CLASSIFICATION    OP    DAMAGES. 

Prospective  ilamases  can  be  awarded  for  loss  of  income  from  profes- 
sional sources.  Rowley  v.  London  &  N.  W.  R.  R.  Co.  1873,  8  Ech.  221. 
See  also  2  K.  B.  1904,  250. 

Dauiajres  may  be  awarded  in  a  judicial  proceeding  for  detriment 
resulting  after  conunenoement  thereof;  and  no  supplemental  pleading  is 
necessary  to  support  such  a  recovery.     Hicks  v.  Drew,  117  Cal.  305. 

There  can  be  a  recovery  for  such  pain  and  inconvenience  as  is  reason- 
ably certain  in  the  future.  Ayres  v.  D.  L.  &  W.  R.  R.  158  N.  Y,  254. 
And  they  nnist  be  limited  by  the  court,  in  its  charge  to  such  as  are 
reasonably  certain.  Penn.  Coal  Co.  v.  Files,  05  Ohio,  403,  So  an  injury 
to  plaintiff's  wife  such  as  to  deprive  the  husband  of  prospective  off- 
spring,   Butler  V.  Manhattan  R.  R.  143  N.  Y.  417. 

Damages  may  be  awarded  for  probable  future  pain  and  loss.  Norfolk 
Ry.  Co.  V.  Spraetey,  103  Va.  379. 

Future  medical  expenses  can  be  recovered.  Webster  v.  Seattle  Ry. 
Co.  42  Wash,  3(34 ;  Hickey  v.  Welch,  91  Mo,  App,  4, 

Prospective  mental  suffering  is  also  an  element  in  damages.  Nichols 
V.  Brabazon,  94  Wis.  549. 

A  parent  can  recover  for  the  prospective  value  of  the  services  of  a 
boy  eight  years  old.  Drew  v.  Sixth  Av,  R.  R,  Co,  26  N,  Y,  49 ;  Similarly 
for  the  continuous  loss  of  services  of  a  minor  child.  Dollard  v.  Roberts, 
130  N.  Y.  364. 

Wherever  the  injury  is  permanent,  prospective  damages  are  allowed. 
Ridenhour  v,  Kansas  City  R,  R.  102  Mo,  270,  See  also  McConnell  v. 
Corona  City  Water  Co.  149  Cal,  60, 

Where,  at  the  trial,  it  appears  that  the  plaintiff  has  not  recovered 
from  her  Injuries,  it  is  proper  to  instruct  the  Jury  as  to  future  suffer- 
ing; and  a  charge  that  the  jury  should  consider  such  future  suffering 
and  loss  of  health  is  not  erroneous. — Chicago  &  M.  El,  R,  R,  v.  Ullrich, 
213  111.  170. 


III.    DIRECT  AND  CONSEQUENTIAL 
DAMAGES. 

HADLEY  V.  BAXENDALE. 
Bang's  Bench,  1854.     9  Exchequer  Reports,  341. 

The  first  count  of  the  declaration  stated,  that,  before  and  at 
the  time  of  the  making  by  the  defendants  of  the  promises  here- 
inafter mentioned,  the  plaintiffs  carried  on  the  business  of 
millers  and  mealmen  in  co-partnership,  and  were  proprietors 
and  occupiers  of  the  City  Steam-Mills,  in  the  city  of  Gloucester, 
and  were  possessed  of  a  steam-engine,  by  means  of  which  they 
worked  said  mills,  and  therein  cleaned  com,  and  ground  the 
same  into  meal,  and  dressed  the  same  into  flour,  sharps,  and 
bran,  and  a  certain  portion  of  the  said  steam-engine,  to  wit,  the 
crank  shaft  of  the  said  steam-engine,  was  broken  and  out  of 
repair,  whereby  the  said  steam-engine  was  prevented  from  work- 
ing, and  the  plaintiffs  were  desirous  of  having  a  new  crank  shaft 
made  for  the  said  mill,  and  had  ordered  the  same  of  certain 
persons  trading  under  the  name  of  W.  Joyce  &  Co.,  at  Green- 
wich, in  the  county  of  Kent,  who  had  contracted  to  make  the 
said  new  shaft  for  the  plaintiffs ;  but  before  they  could  complete 
the  said  new  shaft  it  was  necessary  that  the  said  broken  shaft 
should  be  forwarded  to  their  works  at  Greenwich,  in  order  that 
the  said  new  shaft  might  be  made  so  as  to  fit  the  other  parts  of 
the  said  engine  which  were  not  injured,  and  so  that  it  might  be 
substituted  for  the  said  broken  shaft;  and  the  plaintiffs  were 
desirous  of  sending  the  said  broken  shaft  to  the  said  W.  Joyce 
&  Co.  for  the  purpose  aforesaid ;  and  the  defendants,  before  and 
at  the  time  of  the  making  of  the  said  promises  were  common 
carriers  of  goods  and  chattels  for  hire  from  Gloucester  to  Green- 
wich, and  carried  on  such  business  of  common  carriers,  under 
the  name  of  "Piekford  &  Co.;"  and  the  plaintiffs,  at  the  re- 
quest of  the  defendants,  delivered  to  them  as  such  carriers  the 
said  broken  shaft,  to  be  conveyed  by  the  defendants  as  such 

191 


192  DIRECT    AND    CONSEQUENTIAL   DAMAGES. 

oarriei-s  from  Glouecster  tp  the  said  W.  Joyce  &  Co.,  at  Green- 
wich, and  there  to  be  delivered  for  the  plaintiffs  on  the  second 
day  after  the  day  of  such  delivery,  for  reward  to  the  defend- 
ants; and  in  consideration  thereof  the  defendants  then  prom- 
ised the  plaintiffs  to  convey  the  said  broken  shaft  from  Cdouces- 
ter  to  Greenwich,  and  there  on  the  said  second  day  to  deliver 
the  same  to  the  said  \V.  Joyce  &  Co.  for  the  plaintiffs.  And 
although  such  second  daj^  elapsed  before  the  commencement  of 
this  suit,  yet  the  defendants  did  not  nor  would  deliver  the 
said  broken  shaft  at  Greenwich  on  the  said  second  day,  or  to  the 
said  W.  Joyce  &  Co.  on  the  said  second  day,  but  wholly  neglected 
and  refused  so  to  do  for  the  space  of  seven  days  after  the  said 
shaft  was  so  delivered  to  them  as  aforesaid. 

The  "second  count  stated,  that,  the  defendants  being  such  car- 
riers as  aforesaid,  the  plaintiffs  at  the  request  of  the  defendants, 
caused  to  be  delivered  to  them  as  such  carriers  the  said  broken 
shaft,  to  be  conveyed  by  the  defendants  from  Gloucester  afore- 
said to  the  said  W.  Joyce  &  Co.,  at  Greenwich,  and  there  to  be 
delivered  by  the  defendants  for  the  plaintiffs,  within  a  reason- 
able time  in  that  behalf,  for  reward  to  the  defendants;  and  in 
consideration  of  the  premises  in  this  count  mentioned,  the  de- 
fendants promised  the  plaintiffs  to  use  due  and  proper  care  and 
diligence  in  and  about  the  carrying  and  conveying  the  said 
broken  shaft  from  Gloucester  aforesaid  to  the  said  AV.  Joyce  & 
Co.,  at  Greenwich,  and  there  delivering  the  same  for  the  plaint- 
iffs in  a  reasonable  time  then  following  for  the  carriage,  con- 
veyance, and  delivery  of  the  said  broken  shaft  as  aforesaid ;  and 
although  such  reasonable  time  elapsed  long  before  the  com- 
mencement of  this  suit,  yet  the  defendants  did  not  nor  would 
use  due  or  proper  care  or  diligence  in  or  about  the  carrying  or 
conveying  or  delivering  the  said  broken  shaft  as  aforesaid, 
within  such  reasonable  time  as  aforesaid,  but  wholly  neglected 
and  refused  so  to  do;  and  by  reason  of  the  carelessness,  neg- 
ligence, and  improper  conduct  of  the  defendants,  the  said  broken 
shaft  was  not  delivered  for  the  plaintiffs  to  the  said  W.  Joyce 
&  Co.,  or  at  Greenwich,  until  the  expiration  of  a  long  and  un- 
reasonable time  after  the  defendants  received  the  same  as  afore- 
said, and  after  the  time  when  the  same  should  have  been  de- 
livered for  the  plaintiffs ;  and  by  reason  of  the  several  premises, 
the  completing  of  the  said  new  shaft  was  delayed  for  five  days, 
and  the  plaintiffs  were  prevented  from  working  their  said  steam- 


DIRECT    AND    CONSEQUENTIAL    DAMAGES.  193 

mills,  and  from  cleaning  corn,  and  grinding  the  same  into  meal, 
and  dressing  the  meal  into  flour,  sharps,  or  bran,  and  from  carry- 
ing on  tlieir  said  business  as  millers  and  mealmen  for  the  space 
of  five  days  beyond  the  time  that  they  otherwise  Avould  have 
been  prevented  from  so  doing,  and  they  thereby  were  unable 
to  supply  many  of  their  customers  with  flour,  sharps,  and  bran 
during  that  period,  and  were  obliged  to  buy  flour  to  supply  some 
of  their  other  customers,  and  lost  the  means  and  opportunity 
of  selling  flour,  sharps,  and  bran,  and  were  deprived  of  gains 
and  profits  which  otherwise  would  have  accrued  to  them,  and 
were  unable  to  employ  their  workmen,  to  whom  they  were  com- 
pelled to  pay  wages  during  that  period,  and  were  otherwise 
injured,  and  the  plaintiffs  claim  300  1. 

The  defendants  pleaded  non  assumpserunt  to  the  first  count; 
and  to  the  second  payment  of  25  1.  into  Court  in  satisfaction  of 
the  plaintiffs'  claim  under  that  count.  The  plaintiff's  entered 
a  nolle  prosequi  as  to  the  first  count ;  and  as  to  the  second  plea, 
they  replied  that  the  sum  paid  into  Court  was  not  enough  to 
satisfy  the  plaintiffs'  claim  in  respect  thereof;  upon  which  repli- 
cation issue  was  joined. 

At  the  trial  before  Crompton,  J.,  at  the  last  Gloucester  As- 
sizes, it  appeared  that  the  plaintiffs  carried  on  an  extensive  busi- 
ness as  millers  at  Gloucester;  and  that,  on  the  11th  of  May, 
their  mill  was  stopped  by  a  breakage  of  the  crank  shaft  by  which 
their  mill  was  worked.  The  steam-engine  was  manufactured  by 
Messrs.  Joyce  &  Co.,  the  engineers,  at  Greenwich,  and  it  became 
necessarj^  to  send  the  shaft  as  a  pattern  for  a  new  one  to  Green- 
wich, The  fracture  was  discovered  on  the  12th,  and  on  the 
13th  the  plaintiffs  sent  one  of  their  servants  to  the  office  of  the 
defendants,  who  are  the  well-known  carriers  trading  under  the 
name  of  Pickford  &  Co.,  for  the  purpose  of  having  the  shaft 
carried  to  Greenwich.  The  plaintiffs'  servant  told  the  clerk  that 
the  mill  was  stopped,  and  that  the  shaft  must  be  sent  imme- 
diately; and  in  answer  to  the  inquiry  when  the  shaft  would  be 
taken,  the  answer  was,  that  if  it  was  sent  up  by  twelve  o'clock 
any  day,  it  would  be  delivered  at  Greenwich  on  the  following 
day.  On  the  following  day  the  shaft  was  taken  by  the  defend- 
ants, before  noon,  for  the  purpose  of  being  conveyed  to  Green- 
wich, and  the  sum  of  2  1.  4  s.  was  paid  for  its  carriage  for  the 
whole  distance;  at  the  same  time  the  defendants'  clerk  was  told 
that  a  special  entry,  if  required,  should  be  made  to  hasten  its 

13 


194  DIKECT    AND    CONSEQUENTIAL   DAMAGES. 

delivery.  The  delivery  of  the  shaft  at  Greenwich  was  delayed 
by  some  neglect;  and  the  consequence  was,  that  the  plaintiflEs 
did  not  receive  the  new  shaft  for  several  days  after  they  would 
other^nse  have  done,  and  the  working  of  their  mill  was  thereby 
delayed,  and  they  thereby  lost  the  profits  they  would  otherwise 
have  received. 

On  the  part  of  the  defendants,  it  was  objected  that  these  dam- 
ages were  too  remote,  and  that  the  defendants  were  not  liable 
with  respect  to  them.  The  learned  judge  left  the  case  generally 
to  the  jury,  who  found  a  verdict  with  25  1.  damages  beyond  the 
amount  paid  into  Court. 

Whateley,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  for 
a  new  trial,  on  the  ground  of  misdirection. 

Keating  and  Dowdcswell  (Feb.  1)  showed  cause.  The  plaint- 
iffs are  entitled  to  the  amount  awarded  by  the  jury  as  dam- 
ages. These  damages  are  not  too  remote,  for  they  are  not  only 
the  natural  and  necessary  consequence  of  the  defendants'  default, 
but  they  are  the  only  loss  which  the  plaintiffs  have  actually  sus- 
tained. The  principle  upon  which  damages  are  assessed  is 
founded  upon  that  of  rendering  compensation  to  the  injured 
party.  This  important  subject  is  ably  treated  in  Sedgwick  on 
the  ]\Ieasure  of  Damages.  And  this  particular  branch  of  it 
is  discussed  in  the  third  chapter,  where,  after  pointing  out  the 
distinction  between  the  civil  and  the  French  law,  he  says,  page 
64;  "It  is  sometimes  said,  in  regard  to  contracts,  that  the  de- 
fendant shall  be  held  liable  for  those  damages  only  which  both 
parties  may  fairly  be  supposed  to  have  at  the  time  contemplated 
as  likely  to  result  from  the  nature  of  the  agreement,  and  this 
appears  to  be  the  rule  adopted  by  the  writers  upon  the  civil 
law."  In  a  subsequent  passage  he  says,  "In  cases  of  fraud  the 
civil  law  made  a  broad  distinction"  (page  66)  ;  and  he  adds, 
that ' '  in  such  cases  the  debtor  was  liable  for  all  the  consequences. ' ' 
It  is  difficult,  however,  to  see  what  the  ground  of  such  prin- 
ciple is,  and  how  the  ingredient  of  fraud  can  affect  the  question. 
For  instance,  if  the  defendants  had  maliciously  and  fraudu- 
lently kept  the  shaft,  it  is  not  easy  to  see  why  they  should  have 
been  liable  for  these  damages,  if  they  are  not  to  be  held  so 
where  the  delay  is  occasioned  by  their  negligence  only.  In  speak- 
ing of  the  rule  respecting  the  breach  of  a  contract  to  transport 
goods  to  a  particular  place,  and  in  actions  brought  on  agree- 
ments for  the  sale  and  delivery  of  chattels,  the  learned  author 


DIRECT   AND   CONSEQUENTIAL   DAMAGES.  195 

lays  it  do^Ti,  that    "In  the  former  case,  the  difference  in  value 
between  the  price  at  the  point  where  the  goods  are  and  the  place 
where  they  were  to  be  delivered,  is  taken  as  the  measure  of  dam- 
ages, which,  in  fact,  amounts  to  an  allowance  of  profits;  and 
in  the  latter  case,  a  similar  result  is  had  by  the  application  of 
the  rule,  which  gives  the  vendee  the  benefit  of  the  rise  of  the 
market  price.     (Page  80.)     The  several  cases,  English  as  well  as 
American,  are  there  collected  and  reviewed.     [Parke,  B.     The 
sensible  rule  appears  to  be  that  which  has  been  laid  down  in 
France,  and  which  is  declared  in  their  code — Code  Civil,  liv. 
iii.  tit.  iii.  ss.  1149,  1150,  1151,  and  which  is  thus  translated  in 
Sedgwick,  page  67:    "The  damages  due  to  the  creditor  consist 
in  general  of  the  loss  that  he  has  sustained,  and  the  profit  which 
he  has  been  prevented  from  acquiring,  subject  to  the  modifi- 
cations hereinafter  contained.    The  debtor  is  only  liable  for  the 
damages  foreseen,  or  which  might  have  been  foreseen,  at  the 
time  of  the  execution  of  the  contract,  when  it  is  not  owing  to 
his  fraud  that  the  agreement  has  been  violated.     Even  in  the 
case  of  non-performance  of  the   contract,   resulting  from  the 
fraud  of  the  debtor,  the  damages  only  comprise  so  much  of  the 
loss  sustained  by  the  creditor,  and  so  much  of  the  profit  w^hich 
he  has  been  prevented  from  acquiring,  as  directly  and  imme- 
diately results   from  the  non-performance  of  the   contract."] 
If  that  rule  is  to  be  adopted,  there  was  ample  evidence  in  the 
present  case  of  the  defendants'  knowledge  of  such  a  state  of 
things  as  would  necessarily  result  in  the  damage  the  plaintiffs 
suffered  through  the  defendants'  default.     The  authorities  are 
in  the  plaintiffs'  favor  upon  the  general  ground.     In  Nurse  v. 
Barns,  1  Sir  T.  Raym.  77,  which  was  an  action  for  the  breach 
of  an  agreement  for  the  letting  of  certain  iron  mills,  the  plaint- 
iff was  held  entitled  to)  a  sum  of  500  1.,  awarded  by  reason  of 
loss  of  stock  laid  in,  although  he  had  only  paid  10  1.  by  way  of 
consideration.     In  Borradaile  v.  Brunton,  8  Taunt.  535;  2  B. 
Moo.  582,  which  was  an  action  for  the  breach  of  the  warranty 
of  a  chain  cable  that  it  should  last  two  years  as  a  substitute 
for  a  rope  cable  of  sixteen  inches,  the  plaintiff  was  held  entitled 
to  recover  for  the  loss  of  the  anchor,  which  was  occasioned  by 
the  breaking  of  the  cable  within  the  specified  time.     [Alderson, 
B.     Why  should  not  the  defendant  have  been  liable  for  the  loss 
of  the  ship?     Parke,  B.     Sedgwick  doubts  the  correctness  of 
that  report.    The  learned  Judge  has  frequently  observed  of  late 


liJG  DIRECT    AND    CONSEQUENTIAL   DAMAGES. 

that  the  8th  Taunton  is  of  but  doubtful  authoi-ity,  as  the  eases 
were  not  reported  by  Mr.  Taunton  himself.  Martin,  Ji.  Take 
the  ease  of  the  non-delivery  by  a  carrier  of  a  delicate  piece  of 
machinery,  whereby  the  whole  of  an  extensive,  mill  is  thrown 
out  of  work  for  a  considerable  time ;  if  the  carrier  is  to  be  liable 
for  the  loss  in  that  case,  he  might  incur  damages  to  the  extent 
of  10,000  1.  Parke  B.,  referred  to  Everard  v.  Hopkins,  2  Bulst. 
332.]  These  extreme  cases,  and  the  difficulty  which  conse- 
quently exists  in  the  estimation  of  the  true  amount  of  damages, 
supports  the  view  for  which  the  plaintiffs  contend,  that  the 
question  is  properly  for  the  decision  of  a  jury,  and  therefore 
that  this  matter  could  not  properly  have  been  withdra\\Ti  from 
their  consideration.  In  Ingram  v.  Lawson,  6  Bing.  N.  C.  212, 
the  true  principle  was  acted  upon.  That  was  an  action  for  a 
libel  upon  the  plaintiff,  who  was  the  owner  and  master  of  a 
ship,  which  he  advertised  to  take  passengers  to  the  East  Indies ; 
and  the  libel  imputed  that  the  vessel  was  not  seaworthy,  and 
that  Jews  had  purchased  her  to  take  out  convicts.  The  Court 
held,  that  evidence  showing  that  the  plaintiff's  profits  after  the 
publication  of  the  libel  were  15001.  below  the  usual  average, 
was  admissible,  to  enable  the  jury  to  form  an  opinion  as  to  the 
nature  of  the  plaintiff's  business,  and  of  his  general  rate  of 
profit.  Here,  also,  the  plaintiffs  have  not  sustained  any  loss 
beyond  that  which  was  submitted  to  the  jury.  Bodley  v.  Reyn- 
olds, 8  Q.  B.  779,  and  Kettle  v.  Hunt,  Bull,  N.  P.  77,  are 
similar  in  principle.  In  the  latter,  it  was  held  that  the  loss 
of  the  benefit  of  trade,  which  a  man  suffers  by  the  detention  of 
his  tools,  is  recoverable  as  special  damage.  [Parke,  B.  Sup- 
pose, in  the  present  case,  that  the  shaft  had  been  lost,  what 
would  have  been  the  damage  to  which  the  plaintiffs  would  have 
been  entitled?]  The  loss  they  had  sustained  during  the  time 
they  were  so  deprived  of  their  shaft,  or  until  they  could  have 
obtained  a  new  one.  In  Black  v.  Baxendale,  1  Exch.  410,  by 
reason  of  the  defendant's  omission  to  deliver  the  goods  within 
a  reasonable  time  at  Bedford,  the  plaintiff 's  agent,  who  had  been 
sent  there  to  meet  the  goods,  was  put  to  certain  additional  ex- 
penses, and  this  Court  held  that  such,  expenses  might  be  given 
by  the  jury  as  damages.  In  Brandt  v.  Bowlby,  2  B.  &  Ad.  932, 
which  was  an  action  of  assumpsit  against  the  defendants,  as 
o\vners  of  a  certain  vessel,  for  not  delivering  a  cargo  of  wheat 
shipped  to  the  plaintiffs,  the  cargo  reached  the  port  of  discharge 


DIRECT    AND    CONSEQUENTIAL    DAMAGES.  197 

but  was  not  delivered;  the  price  of  the  cargo  at  the  time  it 
reached  the  port  of  destination  was  held  to  be  the  true  rule  of 
damages.  "As  between  the  parties  in  this  cause,"  said  Parke, 
J.,  "the  plaintiffs  are  entitled  to  be  put  in  the  same  situation 
as  they  Avould  have  been  in,  if  the  cargo  had  been  delivered  to 
their  order  at  the  time  when  it  was  delivered  to  the  wrong  party ; 
and  the  sum  it  would  have  fetched  at  that  time  is  the  amount 
of  the  loss  sustained  by  the  non-performance  of  the  defendants' 
contract."  The  recent  decision  of  this  Court,  in  AVaters  v. 
Towers,  8  Exch.  401,  seems  to  be  strongly  in  the  plaintiffs' 
favor.  The  defendants  there  had  agreed  to  fit  up  the  plaintiffs' 
mills  within  a  reasonable  time,  but  had  not  completed  their  con- 
tract within  such  time ;  and  it  was  held  that  the  plaintiffs  were 
entitled  to  recover,  by  way  of  damages,  the  loss  of  profit  upon 
a  contract  they  had  entered  into  with  third  parties,  and  which 
they  were  unable  to  fulfill  by  reason  of  the  defendants'  breach 
of  contract.  [Parke,  B.  The  defendants  there  must  of  neces- 
sity have  known  that  the  consequence  of  their  not  completing 
their  contract  would  be  to  stop  the  working  of  the  mill.  But 
how  could  the  defendants  here  know  that  any  such  result  would 
follow?]  There  was  ample  evidence  that  the  defendants  knew 
the  purpose  for  which  this  shaft  was  sent,  and  that  the  result 
of  its  non-delivery  in  due  time  would  be  the  stoppage  of  the 
mill;  for  the  defendants'  agent,  at  their  place  of  business,  was 
told  that  the  mill  was  then  stopped,  that  the  shaft  must  be  de- 
livered immediately,  and  that  if  a  special  entry  was  necessary 
to  hasten  its  delivery,  such  an  entry  should  be  made.  The 
defendants  must,  therefore,  be  held  to  have  contemplated  at  the 
time  what  in  fact  did  follow,  as  the  necessary  and  natural  result 
of  their  wrongful  act.  They  also  cited  Ward  v.  Smith,  11  Price. 
19 ;  and  Parke,  B.,  referred  to  Levy  v.  Langridge,  4  M.  &  W.  337. 

Whateley,  Willes,  and  Phipson,  in  support  of  the  rule  (Feb. 
2).  It  has  been  contended,  on  the  part  of  the  plaintiffs,  that 
the  damages  found  by  the  jury  are  a  matter  fit  for  their  con- 
sideration ;  but  still  the  question  remains,  in  what  way  ought 
the  jury  to  have  been  directed?  It  has  been  also  urged,  that, 
in  awarding  damagos,  the  law  gives  compensation  to  the  in- 
jured individual.  But  it  is  clear  that  complete  compensation  is 
not  to  he  awarded ;  for  instance,  the  non-payment  of  a  bill  of 
exchange  might  lead  to  the  utter  ruin  of  the  holder,  and  yet  such 
damage  could  not  be  considered  as  necessarilv  resulting  from  the 


198  DIRECT    AND    CONSEliUENTIAL    DAMAGES. 

breach  of  contract,  so  as  to  entitle  the  party  aggrieved  to  re- 
cover in  respect  of  it.    Take  the  case  of  tlie  breach  of  a  contract 
to  supply   a   riek-cloth,   whereby   and   in   consequence   of   bad 
weather  the  hay,   being  unprotected,   is  spoiled,   that   damage 
would  not  be  recoverable.     Many  similar  cases  might  be  added. 
The  true  principle  to  be  deduced  from  the  authorities  upon  this 
subject  is  that  which  is  embodied  in  the  maxim:    "In  jure  non 
rcmota  causa  sed  proxima  spcdatur."    Sedgwick  says,  page  38, 
"In    regard   to   the   quantum   of   damages,   instead    of    adher- 
ing to  the  term  compensation,  it  would  be  far  more  accurate 
to    say,    in    the    language    of    Domat,    which  we   have   cited 
above,  'that  the  object  is  to  discriminate  between  that  portion  of 
the  loss  which  must  be  borne  by  the  offending  party  and  that 
which  inust  be  borne  by  the  sufferer. '    The  law  in  fact  aims  not 
at  the  satisfaction  but  at  a  division  of  the  loss. ' '    And  the  learned 
author  also   cites  the   following  passage   from   Broom's  Legal 
Maxims :    * '  Every  defendant, ' '  says  Mr.  Broom,  ' '  against  whom 
an  action  is  brought  experiences  some  injury  or  inconvenience 
beyond   what  the  costs   will   compensate  him  for."     Broom's 
Legal  ]\Iaxims,   p.   95;   Davies  v.   Jenkins,   11   M.  &  W.   755. 
Again,  at  page  78,  after  referring  to  the  case  of  Flureau  v. 
Thomhill,  2   W.  Blac.  1078,  he  says,  "Both  the  English  and 
American  Courts  have  generally  adhered  to  this  denial  of  profits 
as  any  part  of  the  damages  to  be  compensated,  and  that  whether 
in  cases  of  contract  or  of  tort.    So,  in  a  case  of  illegal  capture, 
Mr.  Justice  Story  rejected  the  item  of  profits  on  the  voyage,  and 
held  this  general  language:     Independent,  however,  of  all  au- 
thority, I  am  satisfied  upon  principle,  that  an  allowance  of  dam- 
ages upon  the  basis  of  a  calculation  of  profits  is  inadmissible. 
The  rule  would  be  in  the  highest  degree  unfavorable  to  the  in- 
terests of  the  community.    The  subject  would  be  involved  in  utter 
uncertainty.    The  calculation  would  proceed  upon  contingencies, 
and  would  require  a  knowledge  of  foreign  markets  to  an  exact- 
ness, in  point  of  time  and  value,  which  would  sometimes  present 
embarrassing  obstacles;  much  would  depend  upon  the  length  of 
the  voyage,  and  the  season  of  arrival,  much  upon  the  vigilance 
and  activity  of  the  master,  and  much  upon  the  momentary  de- 
mand.    After  all,  it  would  be  a  calculation  upon  conjectures, 
and  not  upon  facts ;  such  a  rule  therefore  has  been  rejected  by 
Courts  of  law  in  ordinary  cases,  and  instead  of  deciding  upon 
the  gains  or  losses  of  parties  in  particular  cases,  a  uniform  inter- 


DIRECT   AND   CONSEQUENTIAL   DAMAGES.  199 

est  has  been  applied  as  the  measure  of  damages  for  the  detention 
of  property. ' '  There  is  much  force  in  that  admirably  constructed 
passage.  We  ought  to  pay  all  due  homage  in  this  country  to 
the  decisions  of  the  American  Courts  upon  this  important  sub- 
ject, to  which  they  appear  to  have  given  much  careful  considera- 
tion. The  damages  here  are  too  remote.  Several  of  the  cases 
which  were  principally  relied  upon  by  the  plaintiffs  are  dis- 
tinguishable. In  Waters  v.  Towers,  1  Exch.  401,  there  was  a 
special  contract  to  do  the  work  in  a  particular  time,  and  the 
damage  occasioned  by  the  non-completion  of  the  contract  was 
that  to  which  the  plaintiffs  were  held  to  be  entitled.  In  Bor- 
radaile  v.  Brunton,  8  Taunt.  535,  there  was  a  direct  engagement 
that  the  cable  should  hold  the  anchor.  So,  in  the  case  of  taking 
away  a  workman's  tools,  the  natural  and  necessary  consequence 
is  the  loss  of  employment:  Bodley  v.  Reynolds,  8  Q.  B.  779. 
The  following  cases  may  be  referred  to  as  decisions  upon  the 
principle  within  which  the  defendants  contend  that  the  present 
case  falls :  Jones  v.  Gooday,  8  M.  &  W.  146 ;  Walton  v.  Fother- 
gill,  7  Car.  &  P.  392 ;  Boyce  v.  Bayliffe,  1  Camp.  58,  and  Archer 
V.  Williams,  2  C.  &  K.  26.  The  rule,  therefore,  that  the  imme- 
diate cause  is  to  be  regarded  in  considering  the  loss,  is  applicable 
here.  There  was  no  special  contract  between  these  parties.  A 
carrier  has  a  certain  duty  cast  upon  him  by  law,  and  that  duty 
is  not  to  be  enlarged  to  an  indefinite  extent  in  the  absence  of  a 
special  contract,  or  of  fraud  or  malice.  The  maxim  ^' dolus  cir- 
cuit u  non  purgatur,"  does  not  apply.  The  question  as  to  how 
far  liability  may  be  affected  by  reason  of  malice  forming  one  of 
the  elements  to  be  taken  into  consideration,  was  treated  of  by 
the  Court  of  Queen's  Bench  in  Lumley  v.  Gye,  2  E.  &  B.  216. 
Here  the  declaration  is  founded  upon  the  defendants'  duty  as 
common  carriers,  and  indeed  there  is  no  pretence  for  saying  that 
they  entered  into  a  special  contract  to  bear  all  the  consequences 
of  the  non-delivery  of  the  article  in  question.  They  were  merely 
bound  to  carry  it  safely,  and  to  deliver  it  within  a  reasonable 
time.  The  duty  of  the  clerk,  who  was  in  attendance  at  the  de- 
fendants' office,  was  to  enter  the  article,  and  to  take  the  amount 
of  the  carriage;  but  a  mere  notice  to  him,  such  as  was  here 
given,  could  not  make  the  defendants,  as  carriers,  liable  as  upon 
a  special  contract.  Such  matters,  therefore,  must  be  rejected 
from  the  consideration  of  the  question.  If  carriers  are  to  be 
liable  in  such  a  case  as  this,  the  exercise  of  a  sound  judgment 


200  DIRECT    AND    CONSEQUENTIAL    DAMAGES. 

would  not  suffice,  but  they  ought  to  bo  gifted  also  with  a  spirit 
of  prophecy.  "I  have  always  understood,"  said  Fatteson, 
J.,  in  Kelly  v.  Partington,  5  B.  &  Ad.  651,  "that  the  special 
damage  must  be  the  natural  result  of  the  thing  done."  That 
sentence  presents  the  true  test.  The  Court  of  Queen's  Bench 
acted  upon  that  rule  in  Foxall  v.  Barnett,  2  E.  &  B.  928.  This 
therefore  is  a  question  of  law,  and  the  jury  ought  to  have  been 
told  that  these  damages  were  too  remote ;  and  that,  in  the  ab- 
sence of  the  proof  of  any  other  damage,  the  plaintiffs  were  en- 
titled to  nominal  damages  only :  Tindall  v.  Bell,  1 1  M.  &  W.  232. 
Siordet  v.  Hall,  4  Bing.  607,  and  De  Vaux  v.  Salvador,  4  A.  & 
E.  420,  are  instances  of  eases  where  the  Courts  appear  to  have 
gone  into  the  opposite  extremes — in  the  one  case  of  unduly  fav- 
oring the  carrier,  in  the  other  of  holding  them  liable  for  results 
which  would  appear  too  remote.  If  the  defendants  should  be 
held  responsible  for  the  damages  awarded  by  the  jury,  they 
would  be  in  a  better  position  if  they  confined  their  business  to 
the  conveyance  of  gold.  They  cannot  be  responsible  for  results 
which,  at  the  time  the  goods  are  delivered  for  carriage,  are  be- 
yond all  human  foresight.  Suppose  a  manufacturer  were  to 
contract  with  a  coal  merchant  or  mine  owner  for  the  delivery 
of  a  boat  load  of  coals,  no  intimation  being  given  that  the  coals 
were  required  for  immediate  use,  the  vendor  in  that  case  would 
not  be  liable  for  the  stoppage  of  the  vendee's  business  for  want 
of  the  article  which  he  had  failed  to  deliver :  for  the  vendor  has 
no  knowledge  that  the  goods  are  not  to  go  to  the  vendee's  gen- 
eral stock.  Where  the  contracting  party  is  shown  to  be  ac- 
quainted with  all  the  consequences  that  must  of  necessity  fol- 
low from  a  breach  on  his  part  of  the  contract,  it  may  be  reason- 
able to  say  that  he  takes  the  risk  of  such  consequences.  If,  as 
between  vendor  and  vendee,  this  species  of  liability  has  no  exist- 
ence, a  fortiori  the  carrier  is  not  to  be  burthened  with  it.  In 
cases  of  personal  injury  to  passengers,  the  damage  to  which  the 
sufferer  has  been  held  entitled  is  the  direct  and  immediate  con- 
sequence of  the  wrongful  act.  Cur.  adv.  vult. 

The  judgment  of  the  Court  was  now  delivered  by 
Alderson,  B.  We  think  that  there  ought  to  be  a  new  trial 
in  this  case;  but,  in  so  doing,  v/e  deem  it  to  be  expedient  and 
necessary  to  state  explicitly  the  rule  which  the  Judge,  at  the  next 
trial,  ought,  in  our  opinion,  to  direct  the  jury  to  be  governed 
by  when  they  estimate  the  damages. 


DIRECT   AND    CONSEQUENTIAL   DAMAGES.  201 

It  is,  indeed,  of  the  last  importance  that  we  should  do  this; 
for,  if  the  jury  are  left  without  any  definite  rule  to  guide  them, 
it  will,  in  such  cases  as  these,  manifestly  lead  to  the  greatest 
injustice.  The  Courts  have  done  this  on  several  occasions ;  and 
in  Blake  v.  Midland  Kailway  Company,  21  L.  J.,  Q.  B.  237,  the 
Court  granted  a  new  trial  on  this  very  ground,  that  the  rule 
had  not  been  definitely  laid  down  to  the  jury  by  the  learned 
judge  at  Nisi  Prius. 

"There  are  certain  established  rules,"  this  Court  says,  in 
Alder  v.  Keighley,  15  M.  &  W.  117,  "according  to  which  the 
jury  ought  to  find. ' '  And  the  Court,  in  that  case,  adds :  ' '  and 
here  there  is  a  clear  rule,  that  the  amount  which  would  have  been 
received  if  the  contract  had  been  kept  is  the  measure  of  damages 
if  the  contract  is  broken. ' ' 

Now  we  think  the  proper  rule  in  such  a  ease  as  the  present  is 
this:  — Where  two  parties  have  made  a  contract  which  one  of 
them  has  broken,  the  damages  which  the  other  party  ought  to  re- 
ceive in  respect  of  such  breach  of  contract  should  be  such  as  may 
fairly  and  reasonably  be  considered  either  arising  naturally,  i.  e., 
according  to  the  usual  course  of  things,  from  such  breach  of 
contract  itself,  or  such  as  may  reasonably  be  supposed  to  have 
been  in  the  contemplation  of  both  parties,  at  the  time  they  made 
the  contract,  as  the  probable  result  of  the  breach  of  it.  Now,  if 
the  special  circumstances  under  which  the  contract  was  actually 
made  were  communicated  by  the  plaintiffs  to  the  defendants,  and 
thus  known  to  both  parties,  the  damages  resulting  from  the 
breach  of  such  a  contract,  which  they  would  reasonably  contem- 
plate, would  be  the  amount  of  injury  which  would  ordinarily 
follow  from  a  breach  of  contract  under  these  special  circum- 
stances so  known  and  communicated.  But,  on  the  other  hand, 
if  these  special  circumstances  were  wholly  unknown  to  the  party 
breaking  the  contract,  he,  at  the  most,  could  only  be  supposed 
to  have  had  in  his  contemplation  the  amount  of  injurj^  which 
would  arise  generally,  and  in  the  great  multitude  of  cases  not 
affected  by  any  special  circumstances,  from  such  a  breach  of 
contract.  For,  had  the  special  circumstances  been  known,  the 
parties  might  have  specially  provided  for  the  breach  of  contract 
by  special  terms  as  to  the  damages  in  that  case ;  and  of  this  ad- 
vantage it  would  be  very  imjust  to  deprive  them.  Now  the 
above  principles  are  those  by  which  we  think  the  jury  ought  to 
be  guided  in  estimating  the  damages  arising  out  of  any  breach 


202  DIRECT   AND   CONSEQUENTIAL   DAMAGES. 

of  contract.  It  is  said,  that  other  eases,  such  as  breaches  of  con- 
tract in  the  non-payment  of  money,  or  in  the  not  making  a  good 
title  to  land,  are  to  be  treated  as  exceptions  from  this,  and  as 
governed  by  a  conventional  rule.  But  as,  in  such  cases,  both 
parties  must  be  supposed  to  be  cognisant  of  that  well-known 
rule,  these  cases  may,  we  think,  be  more  properly  classed  under 
the  rule  above  enunciated  as  to  eases  under  known  special  cir- 
cumstances, because  there  both  parties  may  reasonably  be  pre- 
sumed to  contemplate  the  estimation  of  the  amount  of  damages 
according  to  the  conventional  rule.  Now,  in  the  present  case 
if  we  are  to  apply  the  principles  above  laid  down,  we  find  that 
the  only  circumstances  here  communicated  by  the  plaintiffs  to 
the  defendants  at  the  time  the  contract  was  made,  were,  that 
the  article  to  be  carried  was  the  broken  shaft  of  a  mill,  and  that 
the  plaintiffs  were  the  millers  of  that  mill.  But  how  do  these 
circumstances  show  reasonably  that  the  profits  of  the  mill  must 
be  stopped  by  an  unreasonable  delay  in  the  delivery  of  the 
broken  shaft  by  the  carrier  to  the  third  person?  Suppose  the 
plaintiffs  had  another  shaft  in  their  possession  put  up  or  put- 
ting up  at  the  time,  and  that  they  only  wished  to  send  back  the 
broken  shaft  to  the  engineer  who  made  it;  it  is  clear  that  this 
would  be  quite  consistent  with  the  above  circumstances,  and  yet 
the  unreasonable  delay  in  the  delivery  would  have  no  effect 
upon  the  intermediate  profits  of  the  mill.  Or,  again,  suppose 
that,  at  the  time  of  the  delivery  to  the  carrier,  the  machinery  of 
the  mill  had  been  in  other  respects  defective,  then,  also,  the  same 
results  would  follow.  Here  it  is  true  that  the  shaft  was  actually 
sent  back  to  serve  as  a  model  for  a  new  one,  and  that  the  want 
of  a  new  one  was  the  only  cause  of  the  stoppage  of  the  mill,  and 
that  the  loss  of  profits  really  arose  from  not  sending  down  the 
new  shaft  in  proper  time,  and  that  this  arose  from  the  delay  in 
delivering  the  broken  one  to  serve  as  a  model.  But  it  is  obvious 
that,  in  the  great  multitude  of  cases  of  millers  sending  off  broken 
shafts  to  third  persons  by  a  carrier  under  ordinary  circum- 
stances, such  consequences  would  not,  in  all  probability,  have 
occurred;  and  these  special  circumstances  were  here  never  com- 
municated by  the  plaintiffs  to  the  defendants.  It  follows,  there- 
fore, that  the  loss  of  profits  here  cannot  reasonably  be  considered 
such  a  consequence  of  the  breach  of  contract  as  could  have  been 
fairly  and  reasonably  contemplated  by  both  the  parties  when 
they  made  this  contract.     For  such  loss  would   neither  have 


DIRECT   AND   CONSEQUENTIAL   DAMAGES.  203 

flowed  naturally  from  the  breach  of  this  contract  in  the  great 
multitude  of  such  cases  occurring  under  ordinary  circumstances, 
nor  were  the  special  circumstances  which,  perhaps  would  have 
made  it  a  reasonable  and  natural  consequence  of  such  breach  of 
contract,  communicated  to  or  known  by  the  defendants.  The 
Judge  ought,  therefore,  to  have  told  the  jury  that,  upon  the 
facts  then  before  them,  they  ought  not  to  take  the  loss  of  profits 
into  consideration  at  all  in  estimating  the  damages.  There  must 
therefore  be  a  new  trial  in  this  case. 

Rule  absolute. 


DUBUQUE  WOOD  AND  COAL  ASSOC,  v.  DUBUQUE. 

Iowa,  1870.     30  la.  176. 

Action  at  law.  The  petition  avers,  that,  prior  to  the  date 
when  plaintiff's  cause  of  action  accrued,  there  had  been  erected 
and  maintained  a  bridge  on  Seventh  street  in  the  city  of  Du- 
buque over  a  slough  of  the  Mississippi  River;  that  Seventh 
street  was  a  highway  leading  from  the  business  portion  of  the 
city  to  the  levee  upon  the  river,  and,  as  such,  was  used  by  the 
public;  that  said  bridge  was  a  county  bridge,  and  it  was  the 
duty  of  the  city  as  well  as  the  county  to  rebuild  it  after  it  be- 
came impassable;  that  before  the  bridge  became  impassable,  a 
large  quantity  of  wood  being  deposited  upon  the  levee,  as  was 
customary,  was  purchased  by  plaintiff  for  the  purpose  of  re- 
selling to  its  customers  in  the  city  of  Dubuque;  that  the  levee 
was  liable  to  be  overflowed  by  the  river,  and  the  street  upon 
which  the  bridge  in  question  was  erected  was  the  only  way  over 
which  the  wood  could  have  been  transported  to  plaintiff's  cus- 
tomers. On  account -of  the  bridge  becoming  impassable,  and 
of  the  negligence  of  defendants,  in  failing  to  rebuild  it,  plaintiff 
was  unable  to  remove  his  wood.  Subsequently,  but  prior  to  any 
repairs  made  upon  the  bridge,  the  wood  was  lost  by  a  flood  in 
the  river.  The  defendants  provided  no  other  bridge  or  way 
while  the  bridge  in  question  was  unfit  for  use,  by  which  plaintiff 
could  have  removed  the  wood. 

The  defendants  separately  demurred  to  the  petition,  alleging 
that  it  exhibited  no  cause  of  action,  and  each  claiming  not  to 
be  liable  upon  the  state  of  facts  set  out  in  the  petition.  The  de- 
murrers were  sustained  and  plaintiff  appeals. 

Beck,  J.     It  is  not  denied,  by  the  appellees,  that  the  injury 


204  DIRECT    AND    C0N6EQUENTIAI.    DAMAGES. 

complaiiied  ol'  will  support  an  action,  unless  the  injury  appears 
to  be  public  in  its  nature,  and  the  damage  claimed  too  remote, 
under  the  rules  of  the  law,  to  become  the  basis  of  a  compensa- 
tory judgment.  The  liability  of  the  county  and  city  for  dam- 
age, the  direct  and  certain  result  of  negligence  in  failing  to  re- 
pair a  highway,  when  that  duty  is  imposed  upon  them,  is  not 
questioned  by  the  coimsel  of  appellees. 

The  questions  presented  for  our  determination,  in  this  case, 
are  these :  1.  Are  the  injuries  set  out  in  the  petition,  as  the 
foundation  of  the  action,  of  such  a  public  nature,  being  shared 
by  plaintiff  with  the  public  generally,  that  recovery  therefor  is 
precluded?  2.  Is  the  damage  claimed  so  remote  that  compen- 
sation, under  the  rules  of  law,  will  not  be  given?  3.  If  the 
action  can  be  maintained,  may  recovery  be  had  against  both  of 
the  defendants?  If  not  against  both,  which  one  is  liable?  No 
other  points  are  presented  in  the  argument  of  counsel  for  our 
decision. 

As  our  conclusions  upon  the  second  point  above  stated  are  de- 
cisive of  the  case,  it  will  be  unnecessary  to  examine  the  others. 

The  rule  limiting  the  recovery  of  damage  to  "the  natural  and 
proximate  consequence  of  the  act  complained  of"  is  universally 
admitted,  and  the  extreme  difficulty  in  its  practical  application 
is  quite  as  widely  conceded.  The  difficulty  results  not  from  any 
defect  in  the  rule,  but  in  applying  a  principle,  stated  in  such 
general  language,  to  cases  of  diverse  facts.  The  dividing  line 
between  proximate  and  remote  damages  is  so  indistinct,  if  not 
often  quite  invisible,  that  there  is,  on  either  side,  a  vast  field  of 
doubtful  and  disputed  ground.  In  exploring  this  ground  there 
is  to  be  had  but  little  aid  from  the  light  of  adjudicated  cases. 
The  course  followed  in  each  case,  which  is  declared  to  be  upon 
one  side  or  the  other  of  the  dividing  line,  is  plainly  marked  out, 
but  no  undisputed  landmarks  are  established  by  which  the  divid- 
ing line  itself  may  be  precisely  traced.  As  so  little  aid  is  derived 
from  precedents  in  arriving  at  the  conclusion  we  have  reached, 
it  would  prove  quite  useless  to  refer  to  them. 

Damage  to  be  recoverable  must  be  the  proximate  consequence 
of  the  act  complained  of;  that  is,  it  must  be  the  consequence 
that  follows  the  act,  and  not  the  secondary  result  from  the  first 
consequence,  either  alone  or  in  combination  with  other  circum- 
stances. 

An   illustration    will  serve  the   purpose   of   more   clearly   ex- 


DIRECT   AND    CONSEQUENTIAL   DAMAGES.  205 

pressing  the  principle.  An  owner  of  lumber  deposited  upon 
the  levee  of  the  city  of  Dubuque,  exposed  to  the  floods  of  the 
river,  starts  with  his  team  to  remove  it.  A  bridge  built  by 
the  city  which  he  attempts  to  cross,  from  defects  therein  falls, 
and  his  horses  are  killed.  By  the  breaking  of  the  bridge  and 
the  loss  of  his  team,  he  is  delayed  in  removing  his  property.  On 
account  of  this  delay  his  lumber  is  carried  away  by  the  flood 
and  lost.  The  proximate  consequence  of  the  negligence  of  the 
city  is  the  loss  of  his  horses.  The  secondary  consequence,  re- 
sulting from  the  first  consequence,  is  the  delay  in  removing  the 
lumber,  which  finally,  caused  its  loss.  Damage  on  account  of 
the  first  is  recoverable,  but  for  the  second,  is  denied. 

Applying  these  principles  to  the  case  before  us,  we  conclude 
that  the  losses  for  which  recovery  is  sought  were  not  the  proxi- 
mate consequence  of  the  negligence  of  defendants  complained 
of  in  the  petition.  The  proximate  consequence  of  the  bridge  of 
defendants  becoming  impassable  was  not  the  loss  of  plaintiff's 
wood.  The  loss  resulted  from  the  flood.  It  does  not.  appear 
from  the  petition  that  the  negligence  of  defendants  in  failing 
to  repair  the  bridge,  whereby  plaintiff  was  prevented  removing 
the  wood,  exposed  plaintiff  to  any  other  loss.  All  that  can  be 
said  is,  that  defendants'  negligence  caused  plaintiff  to  delay  re- 
moving the  wood;  the  delay  exposed  the  wood  to  the  flood, 
whereby  it  was  lost.  Plaintiff's  damage,  then,  was  not  the  proxi- 
mate consequence  of  the  acts  of  defendant  complained  of,  but  re- 
sulting from  a  remote  consequence  joined  with  another  circum- 
stance, the  flood.  The  case  is  not  distinguishable  from  the  sup- 
posed case  above  stated. 

In  our  opinion  the  demurrer  was  correctly  sustained.  The 
other  points  raised  in  the  case  need  not  be  noticed. 

Affirmed. 


LAWRENCE  v.  HAGERMAN. 

Illinois,  1870.     56  111.  68. 

Scott,  J.  *  *  *  The  action  is  founded  in  tort,  for  mali- 
ciously suing  out  the  process  of  a  court.  The  averment  in  the 
declaration  is,  that  the  appellant  "wrongfully,  unjustly,  and 
maliciously,  and  without  probable  cause  therefor,"  sued  out  a 
writ  of  attachment  under  the  attachment  act,  and  with  a  ma- 
licious and  wrongful  purpose  caused  the  same  to  be  levied  on 


206  DIRECT   AND    CONSEQUENTIAL   DAMAGES. 

the  ^oods  and  chattels  of  the  appellee.  It  is  alleged  that,  by 
reason  of  the  premises,  the  appellee  sustained  special  damage  in 
the  depreciation  of  the  value  of  the  property  levied  on,  and  in 
the  expenditure  of  large  sums  of  money  in  the  defence  of  the 
action,  and,  as  general  damage,  that  his  business  was  broken  up, 
his  credit  and  reputation  impaired  and  destroyed. 

The  testimony  offered  to  which  objections  were  interposed 
tended  to  show,  negatively  at  least,  that  there  was  no  probable 
cause  for  suing  out  the  writ.  This  was  a  material  averment  and 
it  was  necessary  to  be  proven.  The  evidence  offered  for  that 
purpose  was  legitimate  and  proper. 

The  main  objection  taken  is  to  the  evidence  offered  to  estab- 
lish the  measure  of  damages.  It  seems  to  us  that  the  averments 
in  the  declaration  are  broad  and  comprehensive  enough  to  admit 
of  evidence  of  all  the  injuries  sustained  in  consequence  of  the 
wrongful  act  alleged.  For  the  purpose  of  estimating  the  extent 
and  magnitude  of  the  injury,  the  court  permitted  the  appellee 
to  introduce  evidence  of  the  nature,  character,  and  amount  of 
business  transacted  at  and  before  the  date  of  the  wrongful  levy, 
and  also  evidence  of  the  complete  destruction  of  that  business, 
and  of  the  extent  to  which  the  credit  and  financial  reputation 
of  the  appellee  were  impaired,  and  also  evidence  of  the  actual 
loss  of  the  stock  levied  on,  and  of  the  expenses  incurred  in  and 
about  the  defense  of  the  suit.  No  reason  is  perceived  why  these 
facts  do  not  constitute  proper  elements  for  the  consideration  of 
a  jury  in  estimating  the  damages  occasioned  by  the  tortious  act 
of  the  appellant.  The  evidence  was  pertinent  to  the  issue  made 
by  the  pleadings,  and  the  issue  stated  was  broad  enough  to  admit 
the  proof. 

In  actions  on  the  case  the  party  injured  may  recover  from 
the  guilty  party  for  all  the  direct  and  actual  damages  of  the 
wrongful  act  and  the  consequential  damages  flowing  therefrom. 
The  injured  party  is  entitled  to  recover  the  actual  damages  and 
such  as  are  the  direct  and  natural  consequence  of  the  tortious 
act. 

In  this  instance  the  amount  of  money  actually  paid  out  in  and 
about  the  defense  of  the  suit,  and  the  depreciation  of  the  value 
of  the  stock  on  which  the  wrongful  levy  is  alleged  to  have  been 
made,  are  not  the  only  damages  sustained,  if  the  appellant 
wrongfully,  unjustly,  and  maliciously  and  without  probable 
cause  sued  out  the  writ  of  attachment,  and  caused  the  same  to 


DIRECT   AND    CONSEQUENTIAL   DAMAGES.  207 

be  levied  in  the  maimer  charged.  The  business  of  the  appellee 
had  hitherto  been  prosperous,  his  credit  and  financial  reputation 
good,  and  all  were  destroyed  by  the  malicious  act  of  the  appel- 
lant, if  it  be  conceded  that  he  was  guilty  as  alleged.  It  cannot 
be  said  that  the  law  will  afford  no  redress  for  the  destruction  of 
financial  credit  and  reputation,  or  mete  out  no  measure  of  pun- 
ishment to  the  guilty  party  who  wantonly  and  maliciously 
destroys  them.  The  reputation  and  credit  of  a  man  in  business 
is  of  great  value,  and  is  as  much  within  the  protection  of  the 
law  as  property  or  other  valuable  rights.  And  if  it  be  true  that 
the  appellant  has  maliciously,  by  his  wrongful  act,  destroyed  the 
business,  credit,  and  reputation  of  the  appellee,  the  law  will  re- 
quire him  to  make  good  the  loss  sustained.  Chapman  v.  Kirby, 
49  111.  211. 

The  instructions  given  for  the  appellee  announce  these  prin- 
ciples with  sufficient  accuracy.  The  jury  were  correctly  told 
that  in  estimating  the  damages  they  might  take  into  consider- 
ation any  injury  shown  by  the  evidence  that  the  appellee  sus- 
tained in  his  business  and  reputation,  together  with  the  losses 
actually  sustained  by  the  wrongful  suing  out  of  the  writ  of  at- 
tachment. The  jury  were  also  instructed  that  they  were  not 
confined  to  the  actual  damages,  if  the  T\Tongful  acts  were  wan- 
tonly and  maliciously  committed,  but  they  might  give  exemplary 
damages.     Such  is  the  well-established  rule  of  the  law.     *     *     * 

We  entertain  no  doubt,  upon  principle  and  upon  authority, 
that  an  action  on  the  case  for  maliciously  and  without  probable 
cause,  suing  out  a  writ  of  attachment,  is  maintainable  for  the 
injury  of  the  business,  credit  and  reputation  of  the  defendant, 
notwithstanding  the  statute  has  required  the  plaintiff  to  give  a 
bond,  conditioned  to  pay  all  damages  that  may  be  occasioned  by 
the  wrongful  suing  out  of  the  writ.     *     *     * 

The  judgment  must  he  affirmed. 


McHOSE  V.  FULMER. 

Pennsylvania,  1873.     73  Pa.  365. 

The  cause  of  action  was  on  a  note  given  on  purchase  of  pig 
iron.  Defendants  claim  that  by  the  refusal  of  the  plaintiffs  to 
furnish  the  iron  as  per  contract,  they  (the  defendants)  have 
suffered  damage  in  an  amount  exceeding  the  whole  amount  of 
the  note  for  which  suit  is  broujrht. 


208  DIRECT    AND    CONSEQUENTIAL   DAMAGES. 

SiiAKs;\voOD,  J.  When  a  vendor  fails  to  comply  with  his 
itoutract,  the  general  rule  for  the  measure  of  damages  undoubt- 
edly is,  the  difference  between  the  contract  and  the  market 
price  of  the  article  at  the  time  of  the  breach.  This  is  for  the 
evident  reason  that  the  vendee  can  go  into  the  market  and  ob- 
tain the  article  contracted  for  at  that  price.  But  when  the  cir- 
cumstances of  the  case  are  such  that  the  vendee  cannot  thus 
supply  himself,  the  rule  does  not  apply,  for  the  reason  of  it  ceases : 
Bank  of  ]\Iontgomery  v.  Reese,  2  Casey,  143.  "It  is  manifest," 
says  Mr.  Chief  Justice  Lewis,  "that  this  (the  ordinary  measure) 
would  not  remunerate  him  when  the  article  could  not  be  obtained 
elsewhere,"  If  an  article  of  the  same  quality  cannot  be  pro- 
cured in  the  market,  its  market  price  cannot  be  ascertained,  and 
we  are  without  the  necessary  data  for  the  application  of  the  gen- 
eral rule.  This  is  a  contingency  which  must  be  considered  to 
have  been  within  the  contemplation  of  the  parties,  for  they 
must  be  presumed  to  know  whether  such  articles  are  of  limited 
production  or  not.  In  such  a  case  the  true  measure  is  the  actual 
loss  which  the  vendee  sustains  in  his  own  manufacture,  by  hav- 
ing to  use  an  inferior  article  or  not  receiving  the  advance  on 
his  contract  price  upon  any  contracts  which  he  had  himself 
made  in  reliance  upon  the  fulfilment  of  the  contract  by  the 
vendor.  We  do  not  mean  to  say,  that  if  he  undertakes  to  fill 
his  o^ra  contracts  with  an  inferior  article,  and  in  consequence 
such  article  is  returned  on  his  hands,  he  can  recover  of  his 
vendor,  besides  the  loss  sustained  on  his  contracts,  all  the  extra- 
ordinary loss  incurred  by  his  attempting  what  was  clearly  an 
unwarrantable  experiment.  His  legitimate  loss  is  the  difference 
betw-een  the  contract  price  he  was  to  pay  to  his  vendor  and  the 
price  he  was  to  receive.  This  is  a  loss  which  springs  directly 
from  the  non-fulfilment  of  the  contract.  The  affidavits  of  de- 
fense are  not  as  full  and  precise  upon  this  point  as  they  might 
and  ought  to  have  been,  but  they  state  that  the  defendants 
below  had  entered  into  such  contracts,  and  that  thoy  were  unable 
to  get  the  same  quality  of  iron  which  the  plaintiff  had  agreed  to 
deliver,  and  this,  we  think,  was  enough  to  have  carried  the  case 
to  a  jurj'.  Judgment  reversed,  and  a  procedendo  awarded. 


DIRECT   AND    CONSEQUENTIAL   DAMAGED,  209 

BROWN  V.  CHICAGO,  MILWAUKEE,  AND  ST.  PAUL 
RAILWAY. 

Wisconsin,  1882.     54  Wis.  342. 

Taylor,  J.  In  this  case  we  deem  it  material  to  determine 
whether  the  action  is  an  action  for  a  tort,  or  an  action  for  a 
breach  of  the  contract  to  carry  the  plaintiffs  to  their  destina- 
tion, because  we  think  the  rules  of  damages  in  the  two  actions 
are  essentially  different.  We  hold  that  the  action  in  this  case 
is  based  upon  the  tort  of  the  defendant  in  negligently  and  care- 
lessly directing  the  plaintiff's  to  leave  the  cars  before  they  reached 
their  destination. 

The  plaintiffs  claim,  and  the  evidence  shows,  that  they  and 
their  child,  about  seven  years  old,  were  directed  to  leave  the 
cars,  by  the  brakeman,  at  a  place  some  three  miles  east  of  Maus- 
ton,  being  told  at  the  time  that  it  was  Mauston,  their  place  of 
destination.  When  they  left  the  cars  it  was  night ;  it  was  cloudy, 
and  had  rained  the  day  before ;  there  was  a  freight  train  stand- 
ing on  a  side  track  where  they  were  put  off  the  train ;  there 
w^as  no  platform,  and  no  lights  visible  except  those  on  the  freight 
train.  Plaintiffs  soon  ascertained  that  they  were  not  at  Mauston, 
and  did  not  know  where  they  were.  They  did  not  see  the  station- 
house,  although  there  was  one,  but  it  was  hid  from  their  view 
by  the  freight  train  standing  on  the  side  track.  They  supposed 
they  were  at  a  place  two  miles  east,  where  the  train  sometimes 
stopped,  but  where  there  was  no  station-house.  They  started 
west  on  the  track  towards  Mauston,  expecting  to  find  a  house 
M'here  they  might  stop,  but  did  not  find  one  until  they  came  to 
the  bridge,  about  a  mile  east  of  Mauston,  and  then  they  thought 
it  easier  to  go  on  to  Mauston  than  seek  shelter  at  the  house, 
which  was  a  considerable  distance  from  the  track.  They  went 
on  to  Mauston,  and  arrived  there  late  at  night,  Mrs.  Brown 
quite  exhausted  from  the  walk.  She  was  pregnant  at  the  time. 
She  had  severe  pains  during  the  night,  and  the  pains  continued 
from  time  to  time,  and  after  a  few  days  she  commenced  flow- 
ing. The  pains  and  flowing  continued  until  some  time  in 
December,  when  a  miscarriage  took  place,  after  which  inflamma- 
tion set  in,  and  for  some  time  she  was  so  sick  that  she  was  in 
imminent  danger  of  dying.  The  plaintiffs  claim  that  the  mis- 
carriage and  subsequent  sickness  were  all  caused  by  the  walk 


210  DIRECT   AND    CONSEQUENTIAL   DAMAGES. 

INIrs.  Bro^vn  was  eonipelled  to  tnke  to  get  from  the  place  where 
tlioy  were  left  by  tlie  train  to  I\laustoii. 

The  important  question  in  the  case  is,  whether  the  appellant 
is  liable  for  tlie  injury  to  Mrs.  Brown,  admitting  that  it  was 
caused  by  her  walk  to  JMauston.  Whether  the  sickness  of  Mrs. 
Brown  was  caused  by  the  walk  to  Mauston  was  an  issue  in  the 
case,  and  the  jury  have  foimd  upon  the  evidence  that  it  was 
caused  by  the  walk.  There  is  certainly  some  evidence  to  sustain 
this  finding  of  the  jury,  and  their  finding  is  therefore  conclusive 
upon  this  point.  Admitting  that  the  walk  caused  the  miscar- 
riage and  sickness  of  the  plaintiff  Mrs.  Brown,  it  is  insisted  by 
the  learned  counsel  for  the  appellant,  that  the  appellant  is  not 
liable  for  such  injury ;  that  it  is  too  remote  to  be  the  subject  of 
an  action ;  that  the  negligence  and  carelessness  of  the  defendants' 
employees  in  putting  the  plaintiffs  off  the  cars  at  the  place  they 
did,  was  not  the  proximate  cause  of  the  miscarriage  and  sick- 
ness, and  for  that  reason  the  appellant  company  is  not  liable 
therefor.     *     *     * 

The  rule  as  to  what  damages  may  be  recovered  in  actions  for 
breach  of  contract,  is  laid  down  by  this  court  in  the  case  of 
Candee  v.  W.  U.  Tel.  Co.,  34  Wis.  479,  cited  from  Hadley  v. 
Ba.xendale,  9  Exch.  341,  and  approved.     *     *     * 

The  rules  which  limit  the  damages  in  actions  of  tort,  so  far 
as  any  general  rules  can  be  established,  are  in  many  respects 
different  from  those  in  actions  on  contract.  The  general  rule 
is,  that  the  party  who  commits  a  trespass  or  other  wrongful 
act  is  liable  for  all  the  direct  injury  resulting  from  such  act, 
although  such  resulting  injury  could  not  have  been  contem- 
plated as  a  probable  result  of  the  act  done.  (Citing  authori- 
ties.)    *     *     * 

As  stated  by  Justice  Colt  in  the  ease  of  Hill  v.  Winsor,  118 
Mass.  251:  "It  cannot  be  said,  as  a  matter  of  law,  that  the 
jury  might  not  properly  find  it  obviously  probable  that  injury 
in  some  form  would  be  caused  to  those  who  were  at  work  on  tlie 
fender  by  the  act  of  the  defendants  in  running  against  it.  This 
constitutes  negligence,  and  it  is  not  necessary  that  the  injury, 
in  the  precise  form  in  which  it  in  fact  resulted,  should  have 
been  foreseen.  It  is  enough  that  it  now  appears  to  have  been 
a  natural  and  probable  consequence." 

In  the  case  of  Bowas  v.  Pioneer  Tow  Line,  supra,  Judge  Hoff- 
man, speaking  of  the  rule  in  relation  to  damages  on  a  breach  of 


DIRECT   AND    CONSEQUENTIAL    DAMAGES.  211 

contract,  as  contrasted  with  the  rule  in  case  of  wrong,  says: 
"The  effect  of  this  rule  is  more  often  to  limit  than  to  extend 
the  liability  for  a  breach  of  contract,  although  sometimes,  when 
the  special  circumstances  under  which  the  contract  was  made 
have  been  communicated,  damages  consequential  upon  a  breach 
made  under  those  circumstances  will  be  deemed  to  have  been 
contemplated  by  the  parties,  and  may  be  recovered  by  the  de- 
fendant. But  this  rule,  as  Mr.  Sedgwick  remarks,  has  no  appli- 
cation to  torts.  He  who  commits  a  trespass  must  be  held  to 
contemplate  all  damage  which  may  legitimately  flow  from  his 
illegal  act,  whether  he  may  have  foreseen  them  or  not ;  and  so 
far  as  it  is  plainly  traceable,  he  must  make  compensation  for  it." 

The  justice  and  propriety  of  this  rule  are  manifest,  when 
applied  to  cases  of  direct  injury  to  the  person.  If  one  man 
strike  another,  with  a  weapon  or  with  his  hand,  he  is  clearly 
liable  for  all  the  direct  injury  the  party  struck  sustains  there- 
from. The  fact  that  the  result  of  the  blow  is  unexpected  and 
unusual,  can  make  no  difference.  If  the  wrong-doer  should 
in  fact  intend  but  slight  injury,  and  deal  a  blow  which  in  ninety- 
nine  case  in  a  hundred  would  result  in  a  trifling  injury,  and 
yet  by  accident  produce  a  very  grave  one  to  the  person  receiv- 
ing it,  owing  either  to  the  state  of  health  or  other  accidental 
circumstances  of  the  party,  such  fact  would  not  relieve  the 
wrong-doer  from  the  consequences  of  his  act.  The  real  question 
in  these  cases  is,  Did  the  wrongful  act  produce  the  injury  com- 
plained of  ?  and  not  whether  the  party  committing  the  act  could 
have  anticipated  the  result.  The  fact  that  the  act  of  the  party 
giving  the  blow  is  unlawful,  renders  him  liable  for  all  its  direct 
evil  consequences. 

This  was  the  substance  of  the  decision  in  the  old  and  often 
cited  squib  case  of  Scott  v.  Shepherd,  2  W.  Bl.  S92.  Justice 
Nares  there  says  that,  "the  act  of  throwing  the  squib  being  un- 
lawful, the  defendant  was  liable  to  answer  for  the  consequences, 
be  the  injury  mediate  or  immediate;"  and  in  this  view  of  the 
case  all  the  judges  agreed,  although  they  differed  upon  the  ques- 
tion as  to  the  form  of  the  action. 

In  the  case  at  bar,  the  question  to  be  determined  is,  whether 
the  negligent  act  of  the  defendants'  employees  in  putting  the 
plaintiffs  and  their  child  off  the  train  in  the  night-time,  at  the 
place  where  they  did,  was  the  direct  cause  of  the  injury  com- 
plained of  by  the  plaintiffs,  or  whether  it  was  only  a  remote 


212  DIRECT    AND    CONSEQUENTIAL   DAMAGE.'. 

cause  for  which,  no  action  lies.  We  must,  in  considering  this 
case,  take  it  lor  granted  that  the  walk  from  the  place  where 
they  left  the  cars  to  Mauston  was  the  immediate  cause  of  the 
injury  complained  of.  We  think  the  question  whether  there 
was  any  negligenee  on  the  part  of  the  plaintiffs  in  taking  the 
walk,  was  properly  left  to  the  jury,  as  a  question  of  fact;  and 
they  found  that  they  were  guilty  of  no  negligence  on  their 
part.  They  found  themselves  placed  by  the  wrongful  act  of 
the  defendant  where  it  became  necessary  for  their  protection 
to  make  the  journey.  The  fact  that  there  was  a  station-house 
near  by,  at  which  they  might  have  found  shelter  until  another 
train  came  by,  is  not  conclusive  that  the  plaintiffs  were  negli- 
gent in  the  matter.  They  were  landed  at  a  place  where  they 
could  not  see  it,  and  the  jurA'  have  found  that  under  the  circum- 
stances they  were  not  guilty  of  negligence  in  not  finding  it. 
The  defendant  must  therefore  be  held  to  have  caused  the  plaint- 
iffs to  make  the  journey  as  the  most  prudent  thing  for  them  to 
do  imder  the  circumstances.  And,  we  think,  under  the  rules  of 
law,  the  defendant  must  be  liable  for  the  direct  consequences 
of  the  journey.  Had  the  defendant  wrongfully  placed  the 
plaintiffs  off  the  train  in  the  open  country,  where  there  was  no 
shelter,  in  a  cold  and  stormy  night,  and,  on  account  of  the  state 
of  health  of  the  parties,  in  their  attempts  to  find  shelter  they 
had  become  exhausted  and  perished,  it  would  seem  quite  clear 
that  the  defendant  ought  to  be  liable.  The  wrongful  act  of 
the  defendant  would  be  the  natural  and  direct  cause  of  their 
deaths,  and  it  would  seem  to  be  a  lame  excuse  for  the  defendant, 
that,  if  the  plaintiffs  had  been  of  more  robust  health,  they 
would  not  have  perished  or  have  suffered  any  material  injury. 

The  defendant  is  not  excused  because  it  did  not  know  the 
state  of  health  of  Mrs.  Brown,  and  is  equally  responsible  for  the 
consequences  of  the  walk  as  though  its  employees  had  full  knowl- 
edge of  that  fact.  This  court  expressly  so  held  in  the  case  of 
Stewart  v.  Ripon,  38  Wis.  591,  and  substantially  in  the  case 
of  Oliver  v.  Town  of  La  Valle,  36  Wis.  592. 

Upon  the  findings  of  the  jury  'in  this  case,  it  appears  that 
the  defendant  was  guilty  of  wrong  in  putting  the  plaintiffs  off 
the  cars  at  the  place  they  did;  that  in  order  to  protect  them- 
selves from  the  effects  of  such  wrong  they  made  the  walk  to 
Mauston ;  that  in  making  such  walk  they  were  guilty  of  no 
negligence,  but  were  compelled  to  make  it  on  account  of  the 


DIRECT    AND    CONSEQUENTIAL    DAMAGES.  213 

defendant's  wrongful  act;  and  that,  on  account  of  the  peculiar 
state  of  health  of  Mrs.  Brown  at  the  time,  she  was  injured 
by  such  walk.  There  was  no  intervening  independent  cause 
of  the  injury,  other  than  the  act  of  the  defendant.  All  the 
acts  done  by  the  plaintiffs,  and  from  which  the  injury  flowed, 
were  rightful  on  their  part,  and  compelled  by  the  act  of  the 
defendant.  We  think,  therefore,  it  must  be  held  that  the  in- 
jury to  Mrs.  Brown  was  the  direct  result  of  the  defendant's 
negligence,  and  that  such  negligence  was  the  proximate  and 
not  the  remote  cause  of  the  injury,  within  the  decisions  above 
quoted.  We  can  see  no  reason  why  the  defendant  is  not  equally 
liable  for  an  injury  sustained  by  a  person  who  is  placed  in  a 
dangerous  position,  whether  the  injury  is  the  immediate  result 
of  a  wrongful  act,  or  results  from  the  act  of  the  party  in  en- 
deavoring to  escape  from  the  immediate'danger. 

When  by  the  negligence  of  another  a  person  is  threatened 
with  danger,  and  he  attempts  to  escape  such  threatened  danger 
by  an  act  not  culpable  in  itself  under  the  circumstances,  the 
person  guilty  of  the  negligence  is  liable  for  the  injury  re- 
ceived in  such  attempt  to  escape,  even  though  no  injury  would 
have  been  sustained  had  there  been  no  attempt  to  escape  the 
threatened  danger.  This  was  so  held,  and  we  think  properly, 
in  the  case  of  a  passenger  riding  upon  a  stage-coach,  who 
supposing  the  coach  would  be  overturned,  jumped  therefrom 
and  was  injured,  although  the  coach  did  not  overturn,  and 
would  not  have  done  so  had  the  passenger  remained  in  his  seat. 
The  passenger  acted  upon  appearances,  and,  not  having  acted 
negligently,  it  was  held  that  he  could  recover;  it  being  shown 
that  the  coach  was  driven  negligently  at  the  time,  which  neg- 
ligence produced  the  appearance  of  danger,  Jones  v.  Boyce,  1 
Stark.  493.  The  ground  of  the  decision  is  very  aptly  and 
briefly  stated  by  Lord  Ellenborough  in  the  case  as  follows:  "If 
I  place  a  man  in  such  a  situation  that  he  must  adopt  a  perilous 
alternative,  I  am  responsible  for  the  consequences." 

So,  in  the  case  at  bar,  the  defendant,  by  its  negligence,  placed 
the  plaintiffs  in  a  position  where  it  was  necessary  for  them  to 
act  to  avoid  the  consequences  of  the  wrongful  act  of  the  de- 
fendant, and,  acting  with  ordinary  prudence  and  care  to  get 
themselves  out  of  the  difficulty  in  which  they  had  been  placed, 
they  sustained  injury.  Such  injury  can  be,  and  is,  traced  di- 
rectly to  the  defendant's  negligence  as  its  cause;  and  it  is  its 


'21-i  DIRECT   AND    CONSEQUENTIAL   DAMAGES. 

proximate  cause,  within  the  rules  of  law  upon  that  subject.  The 
true  meaning  of  the  maxim,  causa  proxima  non  remota  spec- 
tat  ur,  is  probably  as  well  defined  by  the  late  Chief  Justice  Dixon 
in  the  ease  of  Kellogg  v.  Railway  Co.,  26  Wis.  223,  as  by  any 
other  judge  or  court.  He  states  it  as  follows:  "An  efficient, 
adequate  cause  being  found,  must  be  considered  the  true  cause, 
unless  some  other  cause  not  incident  to  it,  but  independent  of 

it,  is  shoAMi  to  have  intervened  between  it  and  the  result." 

*     #     # 

There  is,  I  think,  but  one  case  cited  by  the  learned  counsel 
for  the  appellant  which  appears  to  be  in  direct  conflict  with 
this  view  of  the  case,  except  those  which  relate  to  breaches  of 
contract,  and  that  is  the  Pullman  Palace  Car  Co.  v.  Barker, 
•1  Col-.  34-4.  This  case  is,  we  think,  unsustained  by  authority, 
and  is  in  direct  conflict  with  the  decisions  of  this  court  in  the 
cases  of  Stewart  v.  Ripon  and  Oliver  v.  Town  of  La  Valle, 
supra.  This  decision  is,  it  seems  to  me,  supported  by  the  prin- 
ciples of  neither  law  nor  humanity.  It  in  effect  says  that,  if 
an  individual  unlawfully  compels  a  sick  and  enfeebled  person 
to  expose  himself  to  the  cold  and  storm  to  escape  worse  con- 
sequences from  his  wrongful  act,  he  cannot  recover  damages 
from  the  wrong-doer,  because  it  was  his  sick  and  enfeebled  con- 
dition which  rendered  his  exposure  injurious.  Certainly  such 
a  doctrine  does  not  commend  itself  to  those  kinder  feelings  which 
are  common  to  humanity,  and  I  know  of  no  other  case  which 
sustains  its  conclusions. 

It  is  said  by  the  Supreme  Court  of  the  United  States  in  M.  & 
St.  P.  Railway  Co.  v.  Kellogg,  (94  U.  S.  475)  : 

"The  true  rule  is,  that  what  is  the  proximate  cause  of  an  in- 
jury is  ordinarily  a  question  for  the  jury.  It  is  not  a  question 
of  science  or  legal  knowledge.  It  is  to  be  determined  as  a  fact, 
in  view  of  the  circumstances  attending  it. "     *     *     * 

By  the  Court. — The  judgment  of  the  Circuit  Court  is 
affirmed. 

Cole,  C.  J.  and  Lyon,  J.  dissent. 


WOOD  V.  PENNSYLVANIA  R.  CO. 

Pennsylvania,   1896.     177  Pa.  306. 

Dean,  J.    We  take  the  facts,  as  stated  by  the  court  below, 
as  follows:     On  the  26th  of  October,  1893,  the  plaintiff,  hav- 


DIRECT   AND    CONSEQUENTIAL   DAMAGES.  215 

ing  bought  a  return  ticket,  went  as  a  passenger  upon  the  rail- 
road of  the  defendant  company  from  Frankfort  to  Holmesburg. 
After  spending  the  day  there,  attending  to  some  matters  of 
business,  he  concluded  to  come  back  upon  a  way  train,  due  at 
Holmesburg  at  5  minutes  after  6  in  the  evening.  While  wait- 
ing for  this  train,  the  plaintiff  stood  on  the  platform  of  the 
station,  which  was  on  the  north  side  of  the  tracks,  at  the  east- 
em  end  of  the  platform,  with  his  back  against  the  wall  at  the 
comer.  To  the  eastward  of  the  station,  a  street  crosses  the  rail- 
road at  grade.  How  far  this  crossing  is  from  the  station  does 
not  appear  from  the  evidence.  It  was  not  so  far  away,  how- 
ever, but  that  persons  on  the  platform  could  see  objects  at  the 
crossing.  For  at  least  150  yards  to  the  eastward  of  the  cross- 
ing the  railroad  is  straight,  and  then  curves  to  the  right.  About 
6  o'clock  an  express  train  coming  from  the  east  upon  the  north 
track  passed  the  station,  and  the  plaintiff,  while  standing  in 
the  position  described,  was  struck  upon  the  leg  by  what  proved 
to  be  the  dead  body  of  a  woman,  and  was  injured.  The  head- 
light of  the  approaching  locomotive  disclosed  to  one  of  the  wit- 
nesses who  stood  on  the  platform  two  women  in  front  of  the 
train  at  the  street  crossing,  going  from  the  south  to  the  north 
side  of  the  tracks.  One  succeeded  in  getting  across  in  safety, 
and  the  other  was  struck  just  about  as  she  reached  the  north 
rail.  How  the  woman  came  to  be  upon  the  track  there  is  nothing 
in  the  evidence  to  show.  There  was  evidence  that  no  bell  was 
rung  or  whistle  blown  upon  the  train  which  struck  the  woman 
before  it  came  to  the  crossing,  and  some  evidence  that  it  was 
running  at  the  rate  of  from  50  to  60  miles  an  hour.  Upon  this 
state  of  facts,  the  trial  judge  entered  a  nonsuit.  The  court  in 
bane,  having  afterwards  refused  to  take  off  the  nonsuit,  we  have 
this  appeal. 

Was  the  negligence  of  defendant  the  proximate  cause  of 
plaintiff's  injury?  Judge  Pennypacker,  delivering  the  opinion 
of  a  majority  of  the  court  below,  concluded  it  was  not,  and  re- 
fused to  take  off  the  nonsuit.  Applying  the  rule  in  Hoag  v. 
Railroad  Co.,  85  Pa.  293,  to  these  facts,  the  question  on  which 
the  case  turns  is:  "Was  the  injury  the  natural  and  probable 
consequence  of  the  negligence — such  a  consequence  as,  under 
the  surrounding  circumstances,  might  and  ought  to  have  been 
foreseen  by  the  wrong-doer  as  likely  to  flow  from  his  act?'* 

The  mle  quoted  in  Hoag  v.  Railroad  Co.,  supra,  is,  in  sub- 


216  DIRECT   AND    CONSECJUENTIAL    DAMAGES. 

stance,  the  conclusion  of  Lord  Bacon,  ;md  the  one  given  in 
Broom's  Legal  Maxims.  It  is  not  only  the  well-settled  rule  of 
thi.s  state,  but  is,  generally,  that  of  the  United  States.  Prof. 
Jaggard,  in  his  valuable  work  on  Torts,  after  a  reference  to 
very  many  of  the  cases  decided  in  a  large  number  of  the  states, 
among  them  Hoag  v.  Railroad  Co.,  comes  to  this  conclusion: 
"It  is  admitted  that  the  rule  is  difficult  of  application.  But 
it  is  generally  held  that,  in  order  to  warrant  a  finding  that  neg- 
ligence, or  an  act  not  amounting  to  wanton  wrong,  is  a  proxi- 
mate cause  of  an  injury,  it  must  appear  that  the  injury  was  the 
natural  and  probable  consequence  of  the  negligence  or  wrong- 
ful act.  and  that  it  ought  to  have  been  foreseen  in  the  light  of 
the  attending  circumstances."  Jag.  Torts,  c.  5.  Judge  Cooley 
states  the  rule  thus:  "If  the  original  act  was  wrongful,  and 
would  naturally,  according  to  the  ordinary  course  of  events, 
prove  injurious  to  some  others,  and  result,  and  does  actually 
result,  in  injury,  through  the  intervention  of  other  causes  not 
wrongful,  the  injury  shall  be  referred  to  the  wrongful  cause, 
passing  through  those  which  were  innocent."  Cooley,  Torts,  69. 
This,  also,  is  in  substance  the  rule  of  Hoag  v.  Railroad  Co.  All 
the  speculations  and  refinements  of  the  philosophers  on  the  exact 
relations  of  cause  and  effect  help  us  very  little  in  the  determina- 
tion of  rules  of  social  conduct.  The  juridical  cause,  in  such  a 
ease,  as  we  have  held  oA^er  and  over,  is  best  ascertained  in  the 
practical  affairs  of  life  by  the  application  to  the  facts  of  the 
rule  in  Hoag  v.  Railroad  Co. 

Adopting  that  rule  as  the  test  of  defendant's  liability,  how  do 
we  determine  the  natural  and  probable  consequences,  which 
must  be  foreseen  of  this  act?  We  answer  in  this  and  all  like 
cases:  from  common  experience  and  observation.  The  prob- 
able conseqaence  of  crossing  a  railroad  in  front  of  a  near  and 
approaching  train  is  death,  or  serious  injury.  Therefore,  act- 
ing from  an  impulse  to  self-preservation,  or  on  the  reflection" 
that  prompts  to  self-preservation,  we  are  deterred  from  crossing. 
Our  conduct  is  controlled  by  the  natural  and  probable  conse- 
quence of  what  our  experience  enables  us  to  foresee.  True,  a 
small  number  of  those  who  have  occasion  to  cross  railroads  are 
reckless,  and,  either  blind  to  or  disregardful  of  consequences, 
cross,  and  are  injured,  killed,  or  barely  escape.  But  this  reck- 
lessness of  the  very  few  in  no  degree  disproves  the  foreseeable- 
ness  of  the  consequences  by  mankind  generally.     Again,  the 


DIRECT   AND    CONSEQUENTIAL   DAMAGES.  217 

competent  railroad  engineer  knows  from  his  own  experience 
and  that  of  others  in  like  employment  that  to  approach  a  grade 
highway  crossing  with  a  rapidly  moving  train  without  warning 
is  dangerous  to  the  lives  and  limbs  of  the  public  using  the 
crossing.  He  knows  death  and  injury  are  the  probable  conse- 
quences of  his  neglect  of  duty ;  therefore  he  gives  warning.    But 
does  any  one  believe  the  natural  and  probable  consequence  of 
standing  50  feet  from  a  crossing,  to  the  one  side  of  a  railroad, 
when  a  train  is  approaching,  either  with  or  without  warning,  is 
death  or  injury  ?   Do  not  the  most  prudent,  as  well  as  the  public 
generally,  all  over  the  land,  do  just  this  thing  every  day,  with- 
out fear  of  danger?     The  crowded  platforms  and  groimds  of 
railroad  stations,   generally  located  at   crossings,   alongside  of 
approaching,  departing,  and  swiftly  passing  trains,  prove  that 
the  public,  from  experience  and  observation,   do  not,  in  that 
situation,  foresee  any  danger  from  trains.     They  are  there  be- 
cause, in  their  judgment,  although  it  is  possible  a  train  may 
strike  an  object,  animate  or  inanimate,  on  the  track,  and  hurl 
it  against  them,  such  a  consequence  is  so  highly  improbable  that 
it  suggests  no  sense  of  danger.     They  feel  as  secure  as  if  in 
their  homes.    To  them  it  is  no  more  probable  than  that  a  train 
at  that  point  will  jump  the  track  and  run  over  them.     If  such 
a  consequence  as  here  resulted  was  not  natural,  probable,  or 
foreseeable  to  anybody  else,  should  defendant,  imder  the  rule 
laid  down  in  Hoag  v.  Railroad  Co.,  be  chargeable  with  the  con- 
sequence?    Clearly,  it  was  not  the  natural  and  probable  conse- 
quence of  its  neglect  to  give  warning,  and  therefore  was  not 
one  which  it  was  bound  to  foresee.     The  injury,  at  most,  was 
remotely  possible,  as  distinguished  from  the  natural  and  prob- 
able consequences  of  the  neglect  to  give  warning.    As  is  said  in 
Railroad  Co.  v.  Trich,  117  Pa.  399:     "Responsibility  does  not 
extend  to  every  consequence,  which  may  possibly  result  from 
negligence. ' ' 

What  we  have  said  thus  far  is  on  the  assumption  the  accident 
was  caused  solely  by  the  negligence  of  defendant,  or  by  the  con- 
curring negligence  of  defendant  and  the  one  killed  going  upon 
the  track  with  a  locomotive  in  full  view.  This  being  an  action 
by  an  innocent  third  person,  he  cannot  be  deprived  of  his  remedy 
because  his  injury  resulted  from  the  eoneuirent  negligence  of 


218  DIRECT   AND    CONSEQUENTIAL   DAMAGES. 

two  others.     He   fails   because  his   injury  was  a  consequence 
so  remote  that  defendjint  could  not  reasonably  foresee  it. 
We  think  the  nonsuit  wiis  properly  entered. 

I'he  judgment  is  affirmed. 

In  Mann  Boudoir  Car  Co.  v.  Dupre,  .'■>4  Fed.  CAC>,  McCormick,  Circuit 
Judge,  lield  that  wliere  the  misconduct  of  the  carrier's  servant  to  a 
female  passenger  enceinte  was  the  ijroximate  cause  of  a  miscarriage, 
the  carrier  was  not  excused  because  he  did  not  understand  the  physical 
condition  of  the  lady. 

In  Chapman  v.  Kirby,  49  111.  210,  where  a  well-established  business 
of  plaintiff  was  broken  up  by  defendants  wrongful  act,  defendant  was 
held  liable  for  all  the  losses  flowing  from  it. 

A  municipal  corporation  is  not  responsible  for  consequential  damages 
caused  by  negligence  in  improving  a  public  street.  Uppington  v.  City  of 
New  York.  1*15  N.  Y.  222. 

For  liability  in  case  of  consequential  damages,  see  Boehrer  v.  Juer- 
gens,  133  Wis.  426,  an  action  against  a  manufacturing  jeweler  to  whom 
jewels  had  been  sent  for  repair. 

For  proximate  cause  see  also  Laidlaw  v.  Sage,  158  N.  Y.  73;  and 
Kleiner  v.  Third  Ave.  R.  R.  Co.  162  N.  Y.  193. 

Guille  T.  Swan,  19  Johns,  381,  is  a  very  celebrated  case  illustrating 
the  doctrine  of  direct  and  consequential  damages.  A  balloonist  descended 
near  Swan's  garden ;  a  crowd  assembled  out  of  curiosity  and  trod  on 
the  flowers  and  plants  of  plaintiff.  A  verdict  of  $90  was  sustained,  de- 
fendant being  held  as  eausa  causans,  on  the  authority  of  the  famous 
squib  case,  Scott  v.  Shepherd.  2  Black.  Rep.  892. 

In  Botkin  v.  Miller,  190  Mass.  44,  the  same  question  of  remote  dam- 
ages arose  in  connection  with  disorder  and  injury  to  plaintiff's  barber 
shop  in  Boston,  on  September  14th,  1901,  a  day  kept  as  a  holiday  by 
orthodox  Jews.  Defendant's  business  declined  but  there  was  no  further 
showing  as  to  the  cause  of  the  decline.  Held  that  defendants  were  not 
liable  for  loss  of  profits.    See  Crowell  v.  Moley,  188  Mass.  116. 


IV.     CERTAINTY. 

Contingent,  Remote  and  Speculative  Damages. 

LOKER  V.  DAMON. 

Massachusetts,  1835.     17  Pick.  284. 

Trespass  quare  clausum.  The  declaration  set  forth,  that  the 
defendants  destroyed  and  carried  away  ten  rods  of  the  plaintifiE  's 
fences,  in  consequence  of  which  certain  cattle  escaped  through 
the  breach  and  destroyed  the  plaintiff's  grass,  and  that  he 
thereby  lost  the  profits  of  his  close  from  September,  1832,  to 
July,  1833.  A  default  was  entered  by  agreement.  Damages  were 
to  be  assessed  on  such  principles  as  the  court  should  determine. 

Shaw,  C.  J.  *  *  *  The  Court  are  of  opinion,  that  the 
direction  respecting  damages  was  right.  In  assessing  damages, 
the  direct  and  immediate  consequences  of  the  injurious  act  are 
to  be  regarded,  and  not  remote,  speculative,  and  contingent  con- 
sequences, which  the  party  injured  might  easily  have  avoided 
by  his  own  act.  Suppose  a  man  should  enter  his  neighbor's  field 
unlawfully,  and  leave  the  gate  open ;  if,  before  the  owner  knows 
it,  cattle  enter  and  destroy  the  crop,  the  trespasser  is  responsible. 
But  if  the  owner  sees  the  gate  open  and  passes  it  frequently,  and 
willfully  and  obstinately  or  through  gross  negligence  leaves  it 
open  all  summer,  and  cattle  get  in,  it  is  his  own  folly.  So  if  one 
throw  a  stone  and  break  a  window,  the  cost  of  repairing  the 
window  is  the  ordinary  measure  of  damage.  But  if  the  owner 
suffers  the  window  to  remain  without  reparing  a  great  length 
of  time  after  notice  of  the  fact,  and  his  furniture,  or  pictures,  or 
other  valuable  articles,  sustain  damage,  or  the  rain  beats  in  and 
rots  the  window,  this  damage  would  be  too  remote.  We  think 
the  jury  were  rightly  instructed,  that  as  the  trespass  consisted 
m  removing  a  few  rods  of  fence,  the  proper  measure  of  dam- 
age was  the  costs  of  repairing  it,  and  not  the  loss  of  a  subsequent 
year's  crop,  arising  from  the  want  of  such  fence.  I  do  not 
mean  to  say,  that  other  damages  may  not  be  given  for  injury  in 

219 


220  CERTAINTY, 

breaking  the  i)laintiff's  close,  but  I  mean  only  to  say,  that  in 
the  actual  circumstances  of  this  case,  the  cost  of  replacing  the 
fence,  and  not  the  loss  of  an  ensuing  year's  crop,  is  to  be  taken 
as  the  rule  of  damages,  for  that  part  of  the  injury  which  con- 
sisted in  removing  the  fence  and  leaving  the  close  exposed. 
Judgment  on  the  default,  for  the  sum  of  $1.50  damages. 


MASTERTON  v.  MOUNT  VERNON. 

New  York,  1874.     58  N.  Y.  391. 

This  action  was  brought  to  recover  damages  for  injuries  re- 
ceived by  plaintiff  being  thrown  from  his  wagon  in  one  of  the 
streets  of  the  village  of  Mount  Vernon,  called  Fourth  avenue. 

The  accident  was  occasioned  by  the  wagon  sinking  into  a  ditch 
or  excavation  made  by  the  owners  of  lots  upon  said  street,  with 
the  consent  of  the  village  trustees. 

Grover,  J.  *  *  *  I  also  think  the  judge  erred  in  overrul- 
ing the  defendant's  objection  to  the  following  question:  About 
what  had  been  your  profits,  year  by  year,  in  that  business  ?  The 
plaintiff  had  testified  that  he  was  engaged  in  the  tea  importing 
and  jobbing  business,  buying  and  selling  teas,  and  had  been  for 
a  great  number  of  years.  That  he  had  a  partner  who  attended 
to  the  sales,  while  he  made  the  purchases.  That  in  purchasing 
teas  a  high  degree  of  skill  was  necessary,  which  the  plaintiff  pos- 
sessed. That  the  business  was  extensive.  That  in  consequence 
of  the  injury  the  plaintiff  could  not  purchase  teas,  and  there  was 
a  great  falling  off  in  the  business  of  the  firm.  In  Lincoln  v.  Sara- 
toga and  S.  Railroad  Co.,  23  Wend.  425,  it  was  held,  in  an 
analogous  case,  that  the  plaintiff  might  prove  that  he  was  en- 
gaged in  the  dry  goods  business,  and  its  extent,  but  there  was  no 
attempt  to  prove  the  past  profits  of  the  business,  with  a  view  to 
show  what  the  future  would  be.  Where,  in  such  a  case,  the  plain- 
tiff has  received  a  fixed  compensation  for  his  services,  or  his 
earnings  can  be  shown  with  reasonable  certainty,  the  proof  is 
competent.  Mclntyre  v.  N.  Y.  C.  R.  R.  Co.,  37  N.  Y.  287 ;  Grant 
v.  The  City  of  Brooklyn,  41  Barb.  381.  In  Nebraska  City  v. 
Campbell,  2  Black,  590,  it  was  held  that  proof  that  the  plaintiff 
was  a  physician,  and  the  extent  of  his  practice,  was  competent. 
Wade  V.  Leroy,  20  How.  (U.  S.)  24,  held  the  same.  In  none  of 
these  cases  is  any  intimation  given  that  proof  may  be  given  as 
to  the  Tincertain  future  profits  of  commercial  business,  or  that 


CONTINGENT,    REMOTE   AND   SPECULATIVE   DAMAGES.  221 

the  amount  of  past  profits  derived  therefrom  may  be  shown,  to 
enable  the  jury  to  conjecture  what  the  future  might  probably  be. 
These  profits  depend  upon  too  many  contingencies,  and  are  alto- 
gether too  uncertain  to  furnish  any  safe  guide  in  fixing  the 
amount  of  damages.  In  Walker  v.  The  Erie  R.  R.  Co.,  63  Barb. 
260,  it  was  held  that  proof  of  the  amount  of  income  derived  by 
the  plaintiff  for  the  year  preceding  the  injurj^,  from  the  practice 
of  his  profession  as  a  lawyer,  was  competent.  This  goes  be^^ond 
the  rule  adopted  in  any  of  the  other  cases,  and  it  certainly  ought 
not  to  be  further  extended.  "Whether  proof  of  the  income  de- 
rived by  a  lawyer  from  the  past  practice  of  his  profession  is  com- 
petent for  the  purpose  of  authorizing  the  jury  to  draw  an  infer- 
ence as  to  the  extent  of  the  loss  sustained  by  inability  to  person- 
ally attend  to  business,  may,  I  think,  well  be  doubted.  There  is 
no  such  uniformity  in  the  amount  in  different  years,  as  a  general 
rule,  as  to  make  such  inference  reliable.  But  the  profits  of  im- 
porting and  selling  teas  are  still  more  uncertain.  In  some  years 
they  may  be  large,  and  in  others  attended  with  loss.  The  plain- 
tiff had  the  right  to  prove  the  business  in  which  he  was  engaged, 
its  extent,  and  the  particular  part  transacted  by  him,  and,  if  he 
could,  the  compensation  usually  paid  to  persons  doing  such  busi- 
ness for  others.  These  are  circumstances  the  jury  have  a  right  to 
consider  in  fixing  the  value  of  his  time.  But  they  ought  not  to 
be  permitted  to  speculate  as  to  the  uncertain  profits  of  commer- 
cial ventures,  in  which  the  plaintiff,  if  uninjured,  would  have 
been  engaged. 

The  judgment  appealed  from  should  be  reversed,  and  a  new 
trial  ordered,  costs  to  abide  the  event. 

All  concur. 


LILLEY  V.  DOUBLEDAY. 
High  Court  of  Justice,   1881.     L.  R.  7  Q.  B.  Div.  510. 

Motion  to  enter  judgment  for  the  plaintiff  pursuant  to  the 
findings  of  the  jury.  A  rule  for  a  new  trial,  on  the  ground  that 
the  findings  were  wrong,  was  disposed  of  in  the  course  of  the 
argument.  The  action  was  to  recover  the  value  of  certain  drap- 
ery goods  warehoused  by  the  defendant  for  the  plaintiff,  which 
were  destroyed  by  fire.  The  contract  was  that  the  goods  should 
be  deposited  at  the  defendant's  repository  at  Kingsland  Road, 
but  a  portion  of  them  were  deposited  by  the  defendant  elsewhere, 


222  CERTAINTY. 

and  a  fire  occurring  tlicy  were  destroyed.  The  plaintiff  had 
nisured  the  goods,  giving  Kingsland  Koad  as  the  place  where 
they  were  deposited,  and  in  consequence  lost  the  benefit  of  the 
.insurance. 

Counsel  for  the  plaintiff,  contended  that  there  had  been  a  con- 
version of  the  goods  by  the  defendant,  which  entitled  the  plain- 
tiff to  recover  their  value,  and  further  that,  the  contract  being 
to  keep  the  goods  at  Kingsland  Koad,  and  that  contract  having 
been  broken,  the  defendant  took  the  risk  of  the  loss  of  the  goods 
on  him,  and  was  liable  for  their  value:  Davis  v.  Garrett.  (6 
Biug.  71G). 

Counsel  for  the  defendant,  contended  that  there  had  been  no 
conversion,  and  that  there  having  been  no  intention  to  convert 
the  goods  to  the  defendant's  use  and  nothing  to  change  their 
quality,  the  defendant  would  only  be  liable  in  case  he  did  not  use 
reasonable  care  as  a  warehouseman:  Fouldes  v.  Willoughby  (8 
]\I.  &  W.  540.)  ;  that  the  damages  claimed  would  be  too  remote 
within  the  rule  of  Hadley  v.  Baxendale  (9  Ex.  341.),  as  not 
being  in  the  contemplation  of  the  parties,  and  that  Hobbs  v. 
London  and  South  Western  Ry.  Co.  (Law  Rep  10  Q.  B.  111.) 
was  an  authority  in  favor  of  the  defendant.  They  also  referred 
to  Heald  v.  Carey  (11  C.  B.  977)  ;  Glynn  v.  East  and  West 
India  Dock  Co.  (6  Q.  B.  D.  475)  ;  British  Columbia  Saw  Mill 
Co.  V.  Nettleship  (Law  Rep.  3  C.  P.  499). 

Grove,  J.  I  think  the  plaintiff  is  entitled  to  judgment.  It 
seems  to  me  impossible  to  get  over  this  point,  that  by  the  finding 
of  the  jury  there  has  been  a  breach  of  contract.  The  defendant 
was  entrusted  with  the  goods  for  a  particular  purpose  and  to 
keep  them  in  a  particular  place.  He  took  them  to  another,  and 
must  be  responsible  for  what  took  place  there.  The  only  excep- 
tion I  see  to  this  general  rule,  is  where  the  destruction  of  the 
goods  must  take  place  as  inevitably  at  one  place  as  at  the  other. 
If  a  bailee  elects  to  deal  with  the  propertj^  entrusted  to  him  in 
a  way  not  authorized  by  the  bailor,  he  takes  upon  himself  the 
risk  of  so  doing,  except  where  the  risk  is  independent  of  his 
acts  or  inherent  in  the  property  itself.  That  proposition  is  fully 
supported  by  the  case  of  Davis  v.  Garrett  (6  Bing.  716),  which 
contains  very  little  that  is  not  applicable  to  this  case.  It  was 
argued  that  that  ease  was  decided  on  the  ground  that  the  de- 
fendant was  a  common  carrier,  but  that  is  not  the  ground  of 
the  judgment  of  Tindal,  C.  J.,  who  decided  that  as  the  loss  had 


CONTINGENT,    REMOTE    AND    SPECULATIVE   DAMAGES,  223 

happened  while  the  wrongful  act  of  the  defendant  was  in  oper- 
ation and  was  attributable  to  his  wrongful  act,  he  could  not  set 
up  as  an  answer  to  the  action  the  bare  possibility  of  the  loss  if 
his  wrongful  act  had  never  been  done,  and  he  illustrated  the 
ease  by  saying  that  a  defendant  who  had  by  mistake  forwarded 
a  parcel  by  the  wrong  conveyance,  if  a  loss  had  thereby  ensued, 
would  undoubtedly  be  liable.  I  do  not  give  any  opinion  whether 
what  was  done  here  amounted  to  a  conversion,  but  I  base  my  judg- 
ment on  the  fact  that  the  defendant  broke  his  contract,  by  deal- 
ing with  the  subject-matter  in  a  manner  different  from  that  in 
which  he  contracted  to  deal  with  it.  The  only  case  that  would 
have  made  me  hesitate  is  Hobbs  v.  London  and  South  Western 
Ky.  Co.  (Law  Rep.  10  Q.  B.  Ill),  and  that  we  are  told  has  some 
doubt  thrown  on  it  in  a  recent  case  in  the  Court  of  Appeal 
(M'Mahon  v.  Field,  7  Q.  D.  p.  591),  at  all  events  the  doubt  in- 
duced by  the  former  case  is  not  strong  enough  to  make  me  alter 
the  opinion  I  have  expressed  on  this  one.  There  will,  therefore, 
be  judgment  for  the  plaintiff. 

LiNDLEY,  J.  I  am  of  the  same  opinion.  The  plaintiff  gave 
his  goods  to  the  defendant  to  be  warehoused  at  a  particular  place, 
the  defendant  warehoused  them  elsewhere,  where,  without  any 
particular  negligence  on  his  part,  they  were  destroyed.  The 
consequence  is  that  the  plaintiff  has  a  cause  of  action  and  is 
entitled  to  damages.  The  question  is,  what  damages?  Hadley 
V.  Baxendale  (9  Exch.  334)  is  wide  of  the  mark,  because  the 
question  here  is  whether  the  defendant  was  responsible  for  the 
goods,  and  if  so  the  damages  must  be  their  value.  Then,  it  is 
further  said  that  the  defendant  was  responsible  only  for  want 
of  reasonable  care,  but  is  that  so  when  he  has  departed  from 
his  authority  in  dealing  with  the  goods?  I  give  no  opinion 
whether  there  is  a  conversion  of  the  goods ;  the  question  is,  what 
answer  has  the  defendant  to  the  plaintiff  who  asks  for  them 
back.  Can  he  say  he  will  neither  return  the  goods  nor  pay  their 
value?  I  think  he  cannot.  The  reasoning  in  Davis  v.  Garrett 
(6  Bing.  716)  is  applicable  to  this  case,  and  Burrows  v.  March 
Gas  and  Coke  Co.  (Law  Rep.  5  Ex.  67;  on  appeal.  Law  Rep.  7 
Ex.  96)  shows  that  the  damage  is  not  too  remote. 

Stephen,  J.,  concurred: 

Judgment  for  the  plaintiff. 


22'4  CERTAINTY. 

IIICIIIIORN  V.  BRADLEY. 

Iowa,  1902.     117  Iowa,  130. 

Action  on  aceonnt  for  cigars  sold  and  delivered  at  an  agreed 
price.  Defendant  set  up,  by  way  of  counterclaim,  damages  sus- 
tained through  the  breach  by  plaintiff  of  an  agreement  which 
the  defendant  alleged  gave  him  the  exclusive  right  to  sell  a  cer- 
tain brand  of  cigars  in  certain  territory.  The  defendant  by  ef- 
forts and  expenditures  had  created  a  demand  for  the  cigars  in 
this  territory,  when  plaintiff  refused  to  furnish  any  more  cigars. 
The  jury  returned  a  verdict  for  defendant  on  his  counterclaim 
and  the  plaintiffs  appeal. 

McClain,  j  *  *  *  The  chief  contention,  however,  of 
counsel  for  appellants,  is  that  the  damages  which  defendant  at- 
tempted to  show  were  too  remote  and  speculative  to  be  con- 
sidered. *  *  *  Here  we  are  not  concerned  with  the  ques- 
tion which  sometimes  arises,  whether  profits  are  within  the  con- 
templation of  the  parties,  according  to  the  rule  of  Hadley  v. 
Baxendale,  9  Exch.  341,  which  has  been  frequently  cited,  and  has 
been  approved  by  this  court  in  Mihill's  IManufacturing  Co.  v. 
Day,  50  Iowa,  250,  and  other  cases.  It  is  perfectly  clear  in  this 
case  that  the  profits  to  be  derived  from  the  sale  of  these  cigars 
constituted  the  only  consideration  to  the  defendant  for  entering 
into  the  contract,  and  that  the  loss  of  such  profits  was  in  the 
contemplation  of  the  parties  at  the  time  the  contract  was  made 
as  a  direct  consequence  M^hich  would  result  from  its  breach.  And 
it  is  well  settled  that  when  the  loss  of  future  profits  is  thus  in  the 
contemplation  of  the  parties,  and  does  directly  result  from  the 
breach  of  the  contract,  the  amount  of  profits  thus  lost  may  be 
recovered.     *     *     * 

The  distinction  between  an  erroneous  rule  of  law,  sometimes 
assumed,  that  prospective  profits  are  not  to  be  considered  in 
measuring  damages  for  breach  of  contract,  and  the  correct  propo- 
sition, that  remote  and  speculative  profits  cannot  be  shown,  for 
the  reason  that  no  sufficient  evidence  thereof  is  attainable,  is 
thus  stated  in  U.  S.  v.  Behan,  110  U.  S.  338,  344,  "The  prima 
facie  measure  of  damages  for  the  breach  of  a  contract  is  the 
amount  of  the  loss  which  the  injured  party  has  sustained  thereby. 
If  the  breach  consists  in  preventing  the  performance  of  the  con- 
tract, without  the  fault  of  the  other  party,  who  is  wnlling  to  per- 
form it,  the  loss  of  the  latter  will  consist  of  two  distinct  items  or 


CONTINGENT,   REMOTE   AND   SPECULATIVE   DAMAGES  225 

grounds  of  damage,  namely :  First,  what  lie  has  already  expended 
towards  performance,  less  the  value  of  materials  on  hand;  sec- 
ondly, the  profits  that  he  would  realize  by  performing  the  whole 
contract.  The  second  item — profits — cannot  always  be  re- 
covered. They  may  be  too  remote  and  speculative  in  their  char- 
acter, and  therefore  incapable  of  that  clear  and  direct  proof 
which  the  law  requires.  But  when,  in  the  language  of  Chief 
Justice  Nelson  in  the  case  of  Masterton  v.  Mayor,  etc.,  7  Hill 
(N.  Y.)  69,  they  are  the  'direct  and  immediate  fruits  of  the  con- 
tract,' they  are  free  from  this  objection.  They  are  then  'part 
and  parcel  of  the  contract  itself,  entering  into  and  constituting 
a  portion  of  its  very  elements — something  stipulated  for,  the 
right  to  the  enjoyment  of  which  is  just  as  clear  and  plain  as  to 
the  fulfilment  of  any  other  stipulation.'  Still,  in  order  to  fur- 
nish a  ground  of  recovery  in  damages,  they  must  be  proved.  If 
not  proved,  or  if  they  are  of  such  a  remote  and  speculative  char- 
acter that  they  cannot  be  legally  proved,  the  party  is  confined  to 
his  loss  of  actual  outlay  and  expense."  [Here  the  learned  jus- 
tice cites  authorities.] 

So  where  an  agent  contracts  to  give  his  entire  time  to  his  em- 
ployer for  a  compensation  to  be  determined  by  commissions  on 
sales  of  goods,  his  measure  of  damage  for  being  thrown  out  of 
employment  under  the  contract  is  the  value  of  his  time  lost,  and 
not  the  profits  which  he  would  have  made ;  the  value  of  his  time 
being  a  more  satisfactory  measure  than  the  uncertain  and  in- 
definite profits.  Machine  Co.  v.  Bryson,  44  Iowa,  159;  Wilson 
Sewing  Mach.  Co.  v.  Sloan.  50  Iowa,  367;  Brigham  v.  Carlisle, 
78  Ala.  243.  These  last  three  cases  are  especially  relied  on  by 
appellant,  but  the  present  case  is  plainly  distinguishable  from 
them.  In  those  cases  there  was  a  measure  of  damage  which 
could  be  resorted  to  for  the  purpose  of  giving  the  injured  party 
relief  for  breach  of  contract ;  and  the  court  in  each  case  thought 
that  this  measure  was  more  satisfactory  than  that  to  be  reached 
by  considering  the  profits  which  might  have  been  made  by  the 
complaining  party,  had  he  been  allowed  to  perform  his  contract. 
If  the  question  considered  in  Machine  Co.  v.  Bryson.  s^ipra, 
were  now  before  us  for  the  first  time,  we  might,  in  view  of  the 
later  authorities,  incline  to  the  view  expressed  in  the  dissenting 
opinion.  As  supporting  that  view,  see,  in  addition  to  cases 
already  cited.  Wells  v.  Association,  99  Fed.  222.  But  in  the 
case  before  us  there  is  no  such  measure  of  damage  available  as 

15 


226  CERTAINTY. 

was  foimd  in  the  cases  relied  on  by  the  counsel  for  appellant. 
Deieudaut  did  not  contract  to  give  his  entire  services  to  plaintiff 
in  the  sale  of  cigars,  nor  weiv  his  entire  earnings  dependent  on 
the  profits  to  be  made  out  of  this  contract.  Here  it  is  impossible 
to  estimate  his  damage  by  the  value  of  the  time  lost.  Nor  is  it 
possible  to  measure  his  damage  by  the  labor  and  expense  in- 
volved in  introducing  plaintiffs'  cigars  to  the  trade.  To  some 
extent,  defendant  has  already  been  compensated  for  that  labor 
and  expense  by  the  profits  derived  from  the  sale  of  plaintiffs' 
cigars  during  the  time  of  the  continuance  of  defendant's 
agency ;  and  it  would  be  manifestly  impossible  to  determine  the 
proportion  of  the  labor  and  expense  for  which  he  had  received 
compensation,  and  the  proportion  for  which  he  was  dependent 
by  way  of  compensation  on  the  profits  which  should  have  been 
derived  from  future  sales  which  he  was  not  allowed  to  make. 
It  is  well  established  by  the  decided  preponderance  of  authority 
that  where  future  profits  are  in  the  contemplation  of  the  parties, 
and  there  is  no  other  basis  on  which  damages  for  breach  of  con- 
tract can  be  estimated,  such  profits  may  be  made  the  basis  for  the 
recovery  of  damages.     *     *     * 

In  a  somewhat  similar  case  (Wakeman  v.  Manufacturing  Co., 
101  N.  Y.  205),  it  is  said  that  damages  by  way  of  prospective 
profits  "are  nearly  always  involved  in  some  uncertainty  and 
contingency.  Usually  they  are  to  be  worked  out  in  the  future, 
and  they  can  be  determined  only  approximately  upon  reason- 
able conjectures  and  probable  estimates.  They  may  be  so  un- 
certain, contingent,  and  imaginary  as  to  be  incapable  of  ade- 
quate proof,  and  then  they  cannot  be  recovered,  because  they 
cannot  be  proved.  But  when  it  is  certain  that  damages  have 
been  caused  by  a  breach  of  contract,  and  the  only  uncertainty 
is  as  to  their  amount,  there  can  rarely  be  good  reason  for  re- 
fusmg,  on  account  of  such  uncertainty,  any  damages  whatever 
for  the  breach.  A  person  violating  his  contract  should  not  be 
permitted  entirely  to  escape  liability  because  the  amount  of  the 
damages  which  he  has  caused  is  uncertain.  It  is  not  true  that 
loss  of  profits  cannot  be  allowed  as  damages  for  a  breach  of  con- 
tract. Losses  sustained  and  gains  prevented  are  proper  elements 
of  damage.  Most  contracts  are  entered  into  with  the  view  to 
future  profits,  and  such  profits  are  in  the  contemplation  of  the 
parties,  and  so  far  as  they  can  be  properly  proved,  they  may 
form  the  measure  of  damage.     As  they  are  prospective,  they 


CONTINGENT,    REMOTE    AND   SPECULATIVE   I AMAGES.  227 

must,  to  some  extent,  be  uncertain  and  problematical,  and  yet 
on  that  account  a  person  complaining  of  breach,  of  contract  is 
not  to  be  deprived  of  all  remedy.  It  is  usually  his  right  to 
prove  the  nature  of  his  contract,  the  circumstances  surrounding 
and  following  its  breach,  and  the  consequences  naturally  and 
plainly  traceable  to  it ;  and  then  it  is  for  the  jury,  under  proper 
instructions  as  to  the  rules  of  damages,  to  determine  the  compen- 
sation to  be  awarded  for  the  breach.  When  a  contract  is  re- 
pudiated, the  compensation  of  the  party  complaining  of  its  repu- 
diation should  be  the  value  of  the  contract."  To  the  same  ef- 
fect, see  Schumaker  v.  Heinemann,  99  Wis.  251.  Although  such 
a  measure  of  damages  may  be  unsatisfactory  and  uncertain,  yet, 
if  it  is  the  most  satisfactory  and  certain  measure  which  is  at- 
tainable, justice  is  not  to  be  defeated  because  a  better  measure 
is  not  at  hand.  "The  administration  of  justice  frequently  pro- 
ceeds with  reasonable  certainty  of  accomplishing  what  is  right, 
or  as  nearly  right  as  human  efforts  may  attain  in  the  face  of 
similar  difficulties;  and  it  does  so  by  making  the  experience  of 
mankind,  or,  rather,  the  judgment  which  is  founded  upon  such 
experience,  the  guide."  Taylor  v.  Bradley,  39  N.  Y.  129,  144. 
It  seems  never  to  have  been  held  in  this  state  that,  where  there 
is  no  other  measure  of  damages  for  breach  of  contract,  a  con- 
tracting party  is  to  be  denied  any  damage  because  no  better 
measure  than  the  reasonable  prospective  profits  of  a  business  is 
attainable.  We  think  that  it  would  be  manifestly  unjust  to 
deny  to  the  defendant  in  this  case  any  recovery  whatever  for 
breach  of  his  contract  because  the  contract  itself  contemplated 
and  was  based  upon  prospective  profits.  The  evidence  intro- 
duced did  furnish  as  fair  a  basis  for  estimating  such  profits  as 
could  be  furnished  with  reference  to  the  breach  of  any  such 
contract,  and  we  think  it  was  admissible,  and  that  the  court 
properly  submitted  it  to  the  jury.  Such  a  contract  as  we  have 
before  us  was  recognized  as  valid  in  Kaufman  v.  Manufactur- 
ing Co.,  78  Iowa  679  and  Rosenberger  v.  Marsh,  108  Iowa  47, 
although  the  question  of  measure  of  damages  was  not  presented 
in  those  cases. 

Affirmed. 

Speculative  damages  cannot  be  recovered,  as  e.  g.,  for  failure  to 
receive  promotion  to  a  high  grade  of  service  in  a  company  that  had  no 
fixed  rule  of  promotion.  Richmond  &  W.  R.  R.  Co.  v.  Elliott,  149  U.  S. 
266;  M.  C.  R.  R.  v.  Hardy,  88  Miss.  732. 


228  CERTAINTY. 

Rut  damages  are  allowed,  if  coiisecuitHtial,  unless  too  remote,  trivial 
OT  uucex'taiu,  or  unless  they  result  from  some  justifiable  act.  Grand 
liapids  Boomius  Co.  v.  Jarvis,  30  Mich,  308. 

For  liamafxes  that  are  speculative,  remote  and  contingent,  there  can 
he  no  recovery.  Central  Coal  &  Coke  Co.  v.  Ilartman,  49  C.  C.  A.  244. 
In  a  contract  whereby  plaintiff  was  allowed  to  saw  defendant's  logs, 
si)e<.'ulative  damages  were  refused  in  an  action  for  breach.  I'etrie  v. 
Lane.  58  Mich.  527. 

I'laintifT  can  be  compensated  for  all  detriment  suffered  which  was 
proximately  caused  by  defendant's  act,  but  not  for  damages  not  clearly 
ascertainable  in  their  nature  and  origin.  Nothing  can  be  recovered  for 
remote  and  uncertain  damage  to  health,  reputation  and  feeling.  West- 
watee  v.  Grace  Church,  140  Cal.  339. 

Contingent  damages  are  not  allowed.  Central  Trust  Co.  v.  Clark,  .34 
C.  C.  A.  354 ;  Pittsburg  E.  R.  v.  Moore,  110  111.  304 ;  Shelbourne  v.  Law 
Investment  Co.  2  Q.  B.  1898,  C2G. 

In  Ehrgott  v.  Mayor  of  New  York,  90  N.  Y.  2G4,  plaintiff  was  a  book 
canvasser  for  D.  Appleton  &  Co.,  and  his  earnings  were  from  four  to 
seven  thousand  dollars  per  annum.  He  was  injured  by  a  defect  in  the 
street.  Held,  that  "the  wrongdoer  is  responsible  for  the  natural  and 
proximate  consequences  of  his  misconduct;  and  what  are  such  conse- 
quences must  generally  be  left  for  the  determination  of  the  jury." 

In  Schrandt  v.  Young,  89  N.  W.  Rep.  607,  plaintiff  sued  for  breach  of 
contract  to  care  for  a  flock  of  sheep  and  receive  pay  in  a  share  of  the 
increase  of  the  flock.  Held,  that  such  damages  were  not  contingent  and 
uncertain ;  one  engaged  in  such  business  can,  with  reasonable  accuracy, 
give  the  probable  increase  of  a  flock  of  sheep,  under  certain  stated  con- 
ditions. Contracts  for  purchase  and  sale  of  future  crops  have  been 
recognized  as  valid.    Blackford  v.  Packing  Co.  76  Cal.  212. 

In  Curry  v.  Sandusky  Fish  Co.  88  Minn.  485,  "evidence  was  received 
over  objection  that  one  sturgeon  would  produce  16  pounds  of  caviar; 
that  it  was  worth  85  cents  to  $1.25  per  pound.  This  evidence  was 
clearly  objectionable." 


V.     DAMAGES  IN  ACTIONS  ON  CON- 
TRACTS. 

1,     Contracts  Relating  to  Real  Property. 

FLUREAU  V.  THORNHILL. 
Common  Pleas,  1776.    2  W.  Bl.  1078. 

The  plaintiff  bought  at  an  auction  a  rent  of  26 1,  Is.  per 
annum  for  a  term  of  thirty-two  years,  issuing  out  of  a  lease- 
hold house,  which  let  for  311.  6s.  The  sale  was  on  the  10th  of 
October,  1775.  The  price  at  which  it  was  knocked  dowa  to  him 
was  270  1.,  and  he  paid  a  deposit  of  20  per  cent,  or  54 1.  On 
looking  into  the  title,  the  defendant  could  not  make  it  out ;  but 
offered  the  plaintiff  his  election,  either  to  take  the  title  with 
all  its  faults,  or  to  receive  back  his  deposit  with  interest  and 
costs.  But  the  plaintiff  insisted  on  a  further  sum  for  damages 
in  the  loss  of  so  good  a  bargain ;  and  his  attorney  swore  he  be- 
lieved the  plaintiff  had  been  a  loser  by  selling  out  of  the  stocks 
to  pay  the  purchase  money,  and  their  subsequent  rise  between 
the  3rd  and  the  10th  of  November;  but  named  no  particular 
sum.  Evidence  was  given  by  the  defendant,  that  the  bargain 
was  by  no  means  advantageous,  all  circumstances  considered; 
and  the  auctioneer  proved  that  he  had  orders  to  let  the  lot  go  for 
250  1.  The  defendant  had  paid  the  deposit  and  interest,  being 
54 1.  15s.  6d.,  into  court ;  but  the  jury  gave  a  verdict,  contrary 
to  the  directions  of  De  Grey,  C.  J.,  for  741.  15s.  6d.,  allowing 
20  1.  for  damages. 

Davy  moved  for  a  new  trial,  against  which  Glyn  showed 
cause;  and  by 

De  Grey,  C.  J.  I  think  the  verdict  wrong  in  point  of  law. 
Upon  a  contract  for  a  purchase,  if  the  title  proves  bad,  and  the 
vendor  is  (\^athout  fraud)  incapable  of  making  a  good  one,  I 
do  not  think  that  the  purchaser  can  be  entitled  to  any  damages 
for  the  fancied  goodness  of  the  bargain,  which  he  supposes  he 
has  lost. 

229 


230  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

Gould,  J.,  of  the  same  opinion. 

Blackstone.  J.,  of  the  same  opinion.  These  contracts  are 
merely  upon  condition,  frequently  expressed,  but  always  im- 
plied, that  the  vendor  has  a  good  title.  If  he  has  not,  the  re- 
turn of  the  deposit,  with  interest  and  costs,  is  all  that  can  be 
expected.  For  curiosity,  I  have  examined  the  prints  for  the 
price  of  stock  on  the  last  3rd  of  November,  when  three  per 
cent's  sold  for  871/0.  About  310 1.  must  therefore  have  been  sold 
to  raise  270  1.  And  if  it  costs  20  1.  to  replace  this  stock  a  week 
afterwards  (as  the  verdict  supposes),  the  stocks  must  have  risen 
near  seven  per  cent  in  that  period,  whereas  in  fact  there  was  no 
difference  in  the  price.  Not  that  it  is  material ;  for  the  plaintiff 
had  a  chance  of  gaining  as  well  as  losing  by  a  fluctuation  of  the 
price. 

Nares,  J.,  hesitated  at  granting  a  new  trial ;  but  next  morn- 
ing declared  that  he  concurred  with  the  other  judges. 

Rule  absolute  for  a  new  trial,  paying  the  costs. 


SYNGE  V.  SYNGE. 

L.  R.  1894  1  Q.  B.  466. 

Defendant,  in  an  ante-nuptial  agreement,  promised  to  leave 
by  his  will  a  house  and  lot  to  plaintiff  for  life.  He  did  not  do  so 
but  conveyed  his  whole  estate  to  third  persons.  The  trial  judge 
gave  judgment  for  the  defendant,  holding  that  the  letter  relied 
on  by  the  plaintiff  did  not  amount  to  a  contract.  The  plaintiff 
appeals. 

Kay,  L.  J,    The  questions  which  arise  in  this  case  are  these: 

1.  Was  there  a  binding  contract? 

2.  Was  it  such  a  contract  as  could  be  enforced  in  equity,  or 
was  there  a  remedy  in  damages  for  the  breach  of  it? 

3.  Has  the  time  arrived  at  which  such  remedy  can  be  asserted  ? 

4.  If  the  remedy  be  by  way  of  damages,  what  amount  of 
damages  should  be  given  ? 

The  action  was  tried  by  a  judge  without  a  jury,  so  that  all 
questions,  both  of  fact  and  law  are  open  on  this  appeal. 

It  will  be  convenient  to  consider  the  questions  in  the  order 
in  which  they  are  stated. 

The  alleged  contract  is  contained  in  a  letter  of  December  24, 
1883,  by  the  defendant  to  a  lady  whom  he  was  desirous  to  marry, 
and  is  in  these  words: 


CONTRACTS   RELATING   TO   REAL   PROPERTY.  231 

"You  my  love  thoroughly  understand  the  terms  (and  I  dare- 
say have  told  Mr.  Woodruff  on  which  we  are  to  put  a  stop  tj 
all  this  bother  bj'  becoming  one  another)  which  are  that  I 
leave  house  and  land  to  you  for  your  lifetime.  *  *  *  True 
it  is  possible  but  highly  improbable  that  I  might  come  in  for 
the  title  and  should  be  much  better  off.  Should  such  a  thing 
happen  we  could  see  what  I  ought  and  would  do  for  you. ' ' 

There  seems  to  be  no  doubt  that  the  house  and  land  referred 
to  were  the  house  and  a  small  piece  of  land  at  Ardfield  in  Dev- 
onshire, worth  it  is  said  about  60  1.  or  70 1.  a  year,  in  which 
the  defendant  was  then  residing  with  two  daughters  by  a  former 
marriage.  The  defendant  was  not  then  Sir  R.  Synge.  He  suc- 
ceeded to  the  title  afterwards.  The  lady  who  is  the  plaintiff  had 
some  property  of  her  own  of  which  Mr.  Woodruff  was  trustee. 
He  was  not  a  solicitor. 

The  construction  of  the  letter  is  plain.  It  is  a  statement 
of  the  "terms"  as  to  property  on  which  the  defendant  pro- 
posed to  marry  the  lady.  The  marriage  took  place  on  January 
5,  1884,  ten  days  after  the  date  of  the  letter. 

It  is  argued  that  the  plaintiff  did  not  understand  it  to  be  a 
binding  promise,  and  did  not  so  treat  it.  [The  judgment  then 
dealt  with  the  evidence,  and  continued :] 

The  learned  judge  who  decided  this  case  has  held  that  the 
letter  was  not  treated  by  the  lady  as  a  contract,  although  by  the 
advice  of  Mr.  Woodruff  she  preserved  it.  The  inference,  how- 
ever, that  she  accepted  the  terms  and  married  on  the  faith  of  the 
promise  in  writing  seems  to  us  irresistible.  We  cannot,  with 
deference  to  the  learned  judge,  agree  in  his  view  that  she  treated 
the  letter  as  a  mere  statement  of  intention  by  which  the  intended 
husband  was  not  to  be  bound.  The  law  relating  to  proposals 
of  this  kind  before  marriage  was  thus  stated  by  Lord  Lyndhurst, 
L.  C,  in  Hammersley  v.  De  Biel,  12  CI.  &  F.  45,  at  p.  78 :  "The 
principle  of  law,  at  least  of  equity,  is  this — that  if  a  party 
holds  out  inducements  to  another  to  celebrate  a  marriage,  and 
holds  them  out  deliberately  and  plainly,  and  the  other  party  con- 
sents, and  celebrates  the  marriage  in  consequence  of  them,  if 
he  had  good  reason  to  expect  that  it  was  intended  that  he  should 
have  the  benefit  of  the  proposal  which  was  so  held  out,  a  Court 
of  Equity  will  take  care  that  he  is  not  disappointed,  and  will 
give  effect  to  the  proposal.  ' 

We  are  of  opinion  that  the  proposal  of  terms  in  this  case  was 


232  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

made  iis  an  indueement  to  the  lady  to  many,  that  she  consented 
to  the  terms,  and  married  the  defendant  on  the  faith  tliat  he 
would  keep  his  word,  and  that  accordingly  there  was  a  binding 
contract  on  the  defendant's  part  to  leave  to  his  wife  the  house 
and  hmd  at  Ardlield  for  her  life, 

Then,  secondly,  what  is  the  remedy?  Marriage  is  a  valuable 
consideration  for  such  a  contract  of  the  highest  order,  and 
where,  as  here,  the  contract  is  in  writing,  so  that  there  is  no 
question  upon  the  Statute  of  Frauds,  in  the  language  already 
quoted,  a  Court  of  Equity  will  take  care  that  the  party  who 
marries  on  the  faith  of  such  a  proposal  "is  not  disappointed, 
and  will  give  effect  to  the  proposal," 

In  Hamraersley  v,  De  Biel,  supra,  the  proposal  was  made  on 
behalf  of  the  intended  wife's  father,  by  his  authority,  and  was 
reduced  into  writing,  and  was  to  the  effect  that  the  father  would 
pay  down  10,0001.,  to  be  settled  on  the  intended  husband  and 
wife  and  their  children,  the  husband  to  secure  a  jointure  of  500  1, 
a  year  to  the  wife  if  she  survived  him ;  and  then  followed  the 
provision  on  which  the  question  arose,  by  which  the  father  ' '  pro- 
poses for  the  present  to  allow  his  daughter  200  1,  per  annum  for 
her  private  use,  *  *  *  and  also  intends  to  leave  a  further 
sum  of  10,000  1.  in  his  will  to  Miss  Thomson,  to  be  settled  on 
her  and  her  children."  After  the  father's  death,  without  hav- 
ing made  the  promised  provision  by  will,  the  only  child  of  the 
marriage — his  mother  having  died  before  her  father — insti- 
tuted a  suit  in  equity  against  his  grandfather's  executors  to  re- 
cover 10,000 1.  out  of  his  assets.  Lord  Langdale,  M.  R.,  held 
that  by  acceptance  the  proposal  had  "ripened  into  an  agree- 
ment, ' '  and  that  the  plaintiff  was  entitled  to  the  relief  he  prayed 
— i.  e,  to  the  sum  of  10,000  1.,  with  interest  at  4  per  cent  from 
the  end  of  one  year  after  the  father's  death,  on  the  footing  of  a 
legacy.  Lord  Cottenham,  L.  C,  affirmed  this  decision,  saying 
this,  12  CI.  &  F.  45,  at  p.  62,  n. :  "I  propose,  first,  to  consider 
whether  there  was  any  such  agreement  previous  to  the  marriage 
of  the  plaintiff's  father  and  mother  as  was  binding  on  the  late 
Mr.  Thomson  to  give  an  additional  10,000  1.  as  the  portion  of 
his  daughter.  If  it  be  supposed  to  be  necessary  for  this  pur- 
pose to  find  a  contract,  such  as  usually  accompanies  transactions 
of  importance  in  the  pecuniary  affairs  of  mankind,  there  may 
not  be  found  in  the  memorandum,  or  in  the  other  evidence  in 
the  cause,  proof  of  any  such  contract;  and  this  may  have  led  to 


CONTRACTS   RELATING   TO    REAL    PROPERTY.  233 

the  defense  set  up  by  the  defendants ;  but  when  the  authorities 
on  this  subject  are  attended  to,  it  will  be  found  that  no  such 
formal  contract  is  required." 

Tliis  was  affirmed  in  the  House  of  Lords  by  Lord  Lyndhurst, 
L.  C,  Lord  Brougham,  and  Lord  Campbell,  without  calling 
upon  the  respondents.  We  have  examined  the  case  closelj^  be- 
cause it  is  of  the  highest  authority,  not  merely  as  a  judgment 
of  the  House  of  Lords,  but  it  was  decided  by  some  of  the  best 
equity  lawj^ers  of  that  time.  Lord  St.  Leonards  has  criticized 
the  decision  on  the  ground  that  the  memorandum  in  that  case 
might  have  been  construed  as  a  mere  expression  of  an  intention, 
not  as  a  definite  proposal  which  could  by  acceptance  ripen  into 
a  contract:  Sugden's  Law  of  Property,  p.  53.  But  he  does  not 
intimate  a  doubt  that  the  decision  was  right  if  the  proposal  was 
not  merely  of  an  intention  which  might  be  changed.  Therefore, 
a  definite  proposal  in  writing  so  as  to  satisfy  the  Statute  of 
Frauds,  to  leave  property  by  will,  made  to  induce  a  marriage, 
and  accepted,  and  the  marriage  made  on  the  faith  of  it,  will  be 
enforced  in  equity. 

Then,  what  is  the  remedy  where  the  proposal  relates  to  a  de- 
fined piece  of  real  property?  We  have  no  doubt  of  the  power 
of  the  Court  to  decree  a  conveyance  of  that  property  after  the 
death  of  the  person  making  the  proposal  against  all  who  claim 
under  him  as  volunteers. 

It  is  argued  that  Courts  of  Equity  cannot  compel  a  man  to 
make  a  will.  But  neither  can  they  compel  him  to  execute  a  deed. 
They,  however,  can  decree  the  heir  or  devisee  in  such  a  case  to 
convey  the  land  to  the  widow  for  life,  and  under  the  Trustee 
Acts  can  make  a  vesting  order,  or  direct  that  someone  shall  con- 
vey for  him  if  he  refuses.  And  under  the  like  circumstances, 
the  Court  has  power  to  make  a  declaration  of  the  lady's  right. 

But  counsel  do  not  press  for  such  relief,  or  ask  for  a  declara- 
tion to  bind  the  house  and  land.  The  relief  they  ask  is  damages 
for  breach  of  contract.  It  seems  to  be  proved  that  the  grantees 
of  the  property  under  the  deeds  executed  by  Sir  R.  Synge  took 
without  notice  of  the  letter;  they  acquired,  as  we  understand, 
the  legal  estate  by  the  grant.  If  there  was  any  valuable  con- 
sideration moving  from  them,  no  relief  in  the  nature  of  specific 
performance  could  be  given  against  them;  and  it  is  suggested 
that  the  property,  being  partly  leasehold,  according  to  the  de- 
cision in  Price  v.  Jenkins.  5  Ch.  D.  619,  there  was  such  valuable 


234  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

eonsidoratiou.    It  is  not  necessary  to  examine  this  argument,  as 
counsel  elect  to  ask  for  damages  only. 

Sir  R.  Sjnige  liad  all  his  lifetime  to  perform  this  contract; 
but,  in  order  to  perform  it,  he  must  in  his  lifetime  make  a  dis- 
position in  favor  of  Lady  Synge.  If  he  died  without  having 
done  so,  he  would  have  broken  his  contract.  The  breach  would 
be  omitting  in  his  lifetime  to  make  such  a  disposition.  True, 
it  would  only  take  effect  at  his  death ;  but  the  breach  must  take 
place  in  his  lifetime,  and  as  by  the  conveyance  to  his  daughters 
he  put  it  absolutely  out  of  his  power  to  perform  this  contract, 
Lady  Synge,  according  to  well-known  decisions  (Hochster  v. 
De  la  Tour,  2  E.  &  B.  678 ;  Frost  v.  Knight,  Law  Rep.  7  Ex. 
Ill),  had  a  right  to  treat  that  conveyance  as  an  absolute  breach 
of  contract,  and  to  sue  at  once  for  damages;  and  as  this  Court 
has  both  legal  and  equitable  jurisdiction,  we  are  of  opinion  that 
such  relief  should  be  granted. 

We  have  not  before  us  the  materials  for  assessing  such  dam- 
ages. The  amount  must  depend  on  the  value  of  the  possible 
life  estate  which  Lady  Synge  would  be  entitled  to  if  she  sur- 
vived her  husband.  Their  comparative  ages  would,  of  course, 
be  a  chief  factor  in  such  a  calculation.  There  must  be  an  in- 
quiry as  to  the  proper  amount  of  damages. 

Sir  R.  Synge  must  pay  the  costs  of  the  action  here  and  in 
the  Court  below. 

Appeal  allowed. 


1)     AcTioT^s  Between  Landlord  and  Tenant. 
RAYNOR  V.  BLATZ  BREWING  CO. 

Wisconsin,   1898.     100  Wis.  420. 

This  was  an  action  by  the  lessee  of  real  estate  against  his  lessor 
for  damages  for  alleged  breach  of  the  covenants  of  a  lease.  It 
appears  that  about  April  1,  1897,  the  defendant  leased  to  the 
plaintiff  for  one  year  a  building  in  the  city  of  Milwaukee,  known 
as  the  "People's  Theater,"  to  be  used  as  a  theater  and  saloon,  at 
a  rental  of  $200  per  month. 

Upon  the  trial,  the  plaintiff  was  allowed  to  prove  as  a  basis  for 
the  estimation  of  damages  what  his  profits  had  been  in  the  use 
of  the  building  as  a  theater  and  saloon  during  the  several  years 
immediately  preceding  the  year  in  question  and  it  appeared 


CONTRACTS   RELATING   TO    REAL    PROPERTY.  235 

that  he  had  operated  the  theater  and  saloon  upon  Sunday  as  well 
as  upon  week  days,  whereupon,  upon  the  cross-examination,  the 
defendant's  attorney  endeavored  to  ascertain  from  the  plaintiff 
what  part  of  the  estimated  profits  were  derived  from  the  Sunday 
business.  After  several  questions  upon  this  subject,  the  court 
made  the  following  ruling,  to  which  the  defendant  took  excep- 
tion:  "I  hold  the  profits  which  he  makes  on  Sundays  is  to  be 
included  the  same  as  other  days,  and  that  the  profits  which  this 
man  made  on  Sunday  in  his  business  are  not  to  be  distinguished 
from  the  profits  he  made  generally.  I  will  give  you  the  benefit 
of  the  exception,  and  stop  the  investigation  right  here  as  far  as 
the  Sunday  busmess  is  concerned,  without  holding  whether  his 
business  is  legal  or  illegal  on  Sundays  or  other  days.  There  is  a 
difference  between  a  contract  'made'  on  Sunday  and  'executed' 
on  Sunday.  A  court  held  a  contract  made  on  Sunday  was  illegal, 
but  they  never  held  a  contract  executed  on  Sunday  illegal.  The 
result  of  that  would  be  in  an  accounting  between  partners,  or  in 
such  business,  it  would  be  necessary  to  eliminate  from  the  busi- 
ness the  business  done  on  Sunday,  if  any  of  it  was  done  on  Sun- 
day. If  he  is  entitled  to  recover  profits,  it  is  immaterial  whether 
they  were  made  on  Sunday  or  any  other  day,  in  my  judgment." 
Thereupon  no  further  questions  were  asked  upon  this  subject.  A 
special  verdict  was  demanded,  and  the  defendant,  among  other 
questions,  requested  that  the  court  submit  the  following  ques- 
tions as  a  part  of  the  special  verdict:  "  (7)  Did  the  plaintiff, 
during  the  years  1891  and  1895,  run  his  theater  and  the  premises 
in  question  on  Sundays?  (8)  If  you  answer  the  foregoing  in- 
terrogatory in  the  affirmative,  was  not  a  large  portion  of  his 
profit  derived  from  keeping  open  his  theater  and  premises  in  ques- 
tion on  Sundays  ?  (9)  Was  a  considerable  portion  of  the  profits  of 
the  plaintiff  derived  from  the  sale  of  liquors  in  his  said  theater 
on  Sundays?  (10)  Is  a  considerable  portion  of  the  anticipated 
profits  claimed  by  the  plaintiff  founded  on  the  expected  keeping 
open  of  said  theater  on  Sundays,  and  the  sale  of  liquors  therein 
on  such  days?  (17)  How  much  of  the  anticipated  profits  claimed 
by  the  plaintiff  as  ddmages  were  to  be  derived  from  the  keeping 
open  of  theater  on  Sundays,  and  the  sale  of  liquors  therein  on 
said  days?"  The  court  refused  to  submit  any  of  these  questions, 
and  exceptions  were  duly  taken  to  such  rulings. 

WiNSLOW,  J.  (after  stating  the  facts).  The  verdict  in  this  case 
justifies  the  judgment  for  the  plaintiff,  and  we  have  discovered 


'2o6  DAMAGES   IN   ACTIONS   OX    CONTRACTS, 

no  substantial  error  in  the  case  save  upon  the  question  of  the 
measure  of  damages.  This  was  undoubtedly  a  ease  within  the 
rules  laid  down  in  Poposkey  v^  IMunkwitz,  {)S  Wis.  322,  where  the 
law  authorizes  the  recovery  of  anticipated  profits  of  a  business 
as  damages.  The  loss  of  such  profits  in  the  present  case  must 
clearly  have  been  within  the  contemplation  of  the  parties,  and 
thej'  are  not  too  remote  or  conjectural,  and  are  capable  of  being 
ascertained  with  reasonable  certainty,  because  the  plaintiff  had 
been  transacting  the  same  business  for  years  in  the  building.  The 
evidence,  therefore,  showing  the  plaintiff's  previous  annual  prof- 
its in  this  very  building  while  transacting  the  same  business,  was 
properly  received  as  a  basis  for  ascertaining  the  protits  which  he 
might  reasonably  anticipate  during  the  balance  of  the  year  after 
his  practical  eviction.  But  the  profits  of  an  unlawful  business 
cannot  be  any  proper  basis  for  the  estimate  of  damages.  This 
would  seem  to  be  too  clear  for  argument.  The  profits  made  on 
week  days  may  properly  form  such  basis ;  but  the  profits  made  on 
Sundays,  resulting  from  a  criminal  violation  of  the  Sunday  law, 
cannot  form  any  legal  basis  for  the  estimate  of  damages.  As  well 
might  it  be  claimed  that  the  profits  resulting  from  operating  a 
gambling  hall  or  a  house  of  ill  fame  could  be  used  as  a  basis  for 
damages.  To  state  the  proposition  is  to  answer  it.  The  defend- 
ant attempted,  by  cross-examination  of  the  plaintiff,  and  by  a 
question  proposed  to  be  submitted  in  the  special  verdict,  to  ascer- 
tain what  part  of  the  anticipated  profits  were  based  upon  the 
Sunday  business ;  but  it  was  held  by  the  court  that  the  inquiry 
was  immaterial,  and  we  regard  the  question  as  properly  raised 
by  the  exceptions  taken  to  these  rulings.  Nor  was  it  necessary 
to  raise  the  question  by  pleading.  The  defendant  was  not  re- 
quired to  anticipate  that  the  court  would  allow  evidence  of  im- 
proper elements  of  damage  to  be  received  and  go  to  the  jury.  It 
is  a  question  of  evidence,  and  not  of  pleading.  It  seems  quite 
certain  that  the  jury  took  into  account  the  Sunday  profits  of  past 
years  in  their  estimate  of  the  profits  to  be  anticipated.  Certainly, 
the  rulings  of  the  court  practically  required  them  to  do  so. 
Hence  there  must  be  a  new  trial. 

Judgment  reversed,  and  action  remanded  for  a  new  trial. 


CONTRACTS    RELATING    TO    REAL    PROPERTY.  237 

EAGAN  t'.  BROWNE. 

New  York,  1908.     128  App.  Div.  184. 

Gaynoe,  J.  It  was  held  in  Denison  v.  Ford,  10  Daly,  412,  that 
when  a  tenant  is  evicted  he  cannot  sue  the  landlord  for  tort,  so  as 
to  change  the  rule  as  to  the  measure  of  damages,  but  only  for 
breach  of  the  covenant  of  quiet  enjoyment  which,  if  not  ex- 
pressed, is  implied  in  leases.  But  in  the  later  case  of  Snow  v. 
Pulitzer,  142  N.  Y,  263,  the  tenant  was  allowed  to  pass  the  cove- 
nant by  and  recover  as  for  a  tort.  In  that  way  he  recovered  for 
the  breaking  up  of  his  business  md  the  loss  of  property  caused 
thereby.  In  the  present  case  the  tenants  hired  a  floor  in  a  build- 
ing which  was  furnished  with  steam  power  for  business  purposes 
by  the  landlord,  and  the  lease  was  in  terms  not  only  of  such  floor, 
but  of  the  steam  power  to  run  the  plaintiffs'  business.  The  com- 
plaint alleges  that  the  defendants,  the  subsequent  grantees  of  the 
lessor,  "unlawfully  evicted  the  plaintiffs  from  the  said  premises, 
and  the  use  and  enjoyment  thereof  by  wantonly,  wilfully  and 
maliciously  depriving  and  cutting  off  from  the  plaintiffs'  prem- 
ises and  business  all  the  steam  power  and  live  steam  absolutely 
necessary  for  carrying  on  the  said  laundry  business;"  and  it  is 
alleged  that  the  plaintiffs'  business  was  thereby  broken  up  and 
ruined,  and  they  were  unable  to  get  another  place  equipped  to 
carry  on  their  business.  The  case  seems  to  be  the  same  as  that 
of  Snow  V.  Pulitzer,  for  the  wrongful  trespass  by  removing  the 
support  of  a  side  wall  which  caused  it  to  fall,  as  was  the  fact  in 
that  case,  and  the  wrongful  trespass  of  disconnecting  the  shafts 
in  the  demised  premises  from  the  steam  plant  in  the  present  case, 
are  the  same  in  principle  and  cannot  be  distinguished.  Each 
was  a  trespass  which  destroyed  the  beneficial  use  for  which  the 
premises  were  leased.  The  later  case  of  Witherbee  v.  Meyer,  155 
N.  Y.  446,  is  not  applicable.  There  the  action  was,  and  only 
could  be,  for  damages  for  a  breach  of  covenant  in  the  lease  that 
the  water  power  leased  with  the  grist  mill  was  sufficient  to  run 
the  mill  to  its  full  capacity.  It  was  sufficient  to  run  it,  but  the 
complaint  was  that  it  was  not  as  great  as  the  lease  called  for. 
The  rule  of  damages  allowed  was  the  difference  between  the 
rental  value  with  the  maximum  power  covenanted  for  and  the 
power  as  it  was.  But  suppose  the  landlord  had  wrongfully  torn 
down  the  dam  and  deprived  the  tenant  of  all  power?  The  case 
would  then  have  been  the  same  as  the  present  one  and  that  of 


238  DAMAGES   IN   ACTIONS  ON   CONTRACTS. 

Snow  V.  Pulitzer.  Moreover  loss  of  profits  may  be  recovered  in 
an  action  for  damages  for  breach  of  contract,  for  there  are  many 
exceptions  to  the  general  rule  which  is  deemed  to  be  to  the  con- 
trary, if  it  were  necessary  to  go  into  that.  Bagley  v.  Smith,  10 
N.  Y.  489 ;  Wakoman  v.  Wheeler  &  Wilson  Co.,  101  N.  Y.  205 ; 
Thomson-Houston  Co.  v.  Durant  Co.,  144  N.  Y.  34,  47. 

The  judgment  should  be  reversed. 

Judgment  reversed,  and  new  trial  granted;  costs  to  abide  the 
event. 

All  concur,  except  Hooker,  J.,  who  dissents. 


2)     Sale  of  Land. 
McGUCKIN  V.  MILBANK. 

New  York,  1897.     152  N.  Y.  297, 

This  action  was  brought  to  recover  damages  for  an  alleged 
breach  of  a  covenant  against  incumbrances  in  a  deed. 

Andrews,  C.  J.  Unless,  upon  the  evidence,  the  plaintiff  was, 
in  any  event,  entitled  to  recover,  at  least,  the  sum  for  which  the 
verdict  was  directed,  the  direction  was  erroneous,  and  the  order 
of  the  general  term  must  be  affirmed,  although  a  case  was  or 
might  have  been  made  for  the  recovery  of  damages  to  some 
amount  for  the  breach  of  the  covenant  against  incumbrances 
contained  in  a  deed  of  Cauldwell.  The  action  was  brought  upon 
the  theory  that  the  Manchester  mortgage  had  not  been  cut  off 
by  the  foreclosure  of  the  mortgage  under  which  Cauldwell  ac- 
quired title,  although  it  was  a  subsequent  lien,  and  Manchester 
was  made  a  party  defendant  to  those  foreclosures.  The  defend- 
ants, while  insisting  that  the  lien  of  the  Manchester  mortgage 
was  extinguished  by  the  foreclosures,  further  contend  that  al- 
though it  may  have  been  an  outstanding  and  valid  incumbrance 
on  the  property  at  the  time  of  the  conveyance  by  Cauldwell 
to  the  plaintiff,  and  constituted  a  breach  of  the  covenant  against 
incumbrances  contained  in  Cauldwell 's  deed,  no  case  was  made 
for  the  recovery  of  more  than  nominal  damages.  The  plaintiff 
was  neither  evicted  under  the  Manchester  mortgage,  nor  has 
he  paid  the  mortgage,  or  any  part  of  it.  It  is  the  general  rule 
that  a  grantee  under  a  deed  containing  a  covenant  against  in- 
cumbrances, who  has  not  been  disturbed  in  his  possession,  and 
who  has  not  paid  the  mortgage  or  other  money  lien  on  the  land. 


CONTRACTS  RELATING  TO  REAL   PROPERTY.  239 

is  not  entitled  to  an  action  for  the  breach  of  the  covenant  to  re- 
cover more  than  nominal  damages.  This  rule  was  declared  with 
great  distinctness  in  the  case  of  Delavergne  v.  Norris,  7  Johns. 
358,  and  has  been  steadily  adhered  to  in  this  state.  The  prin- 
ciple of  the  decision  is  that  a  covenant  against  incumbrances  is 
treated  as  a  contract  of  indemnity,  and  although  broken  as  soon 
as  made,  if  broken  at  all,  nevertheless  a  recovery  (beyond  nomi- 
nal damages)  is  confined  to  the  actual  loss  sustained  by  the 
covenantee  by  reason  of  the  payment  or  enforcement  of  the  in- 
cumbrance against  the  property.  He  is  not  permitted  to  recover 
the  amoimt  of  the  outstanding  incumbrance  before  payment  or 
loss  of  the  property,  although  its  existence  may  be  an  embarrass- 
ment to  his  title,  and  subject  him  to  inconvenience.  The  reason 
for  the  rule  is  stated  in  Delavergne  v.  Norris :  "If  the  plaint- 
iff, when  he  sues  on  a  covenant  against  incumbrances,  has  ex- 
tinguished the  incumbrance,  he  is  entitled  to  recover  the  price  he 
has  paid  for  it.  But,  if  he  has  not  extinguished  it,  but  it  is 
still  an  outstanding  incumbrance,  his  damages  are  but  nominal, 
for  he  ought  not  to  recover  the  value  of  an  incumbrance  on  a 
contingency,  where  he  may  never  be  disturbed  by  it. ' '  The  case 
cited  was  the  case  of  a  mortgage,  which  could  be  discharged 
as  of  right  by  a  money  payment,  and  where  the  grantee  was  in 
the  undisturbed  possession  of  the  land.  But  there  is  no  duty 
resting  upon  a  covenantee  in  such  a  case  to  pay  the  incumbrance, 
as  between  him  and  his  grantor ;  and  if  the  title  of  the  covenantee 
is  divested  by  proceedings  in  invitum  based  on  the  incumbrance, 
without  fraud  or  collusion  on  his  part,  then  it  would  seem  that 
whatever  damages  can  arise  out  of  the  breach  of  the  covenant 
had  happened,  and  may  be  recovered.  In  the  case  supposed, 
the  covenantee  has  lost  his  property  by  reason  of  the  incum- 
brance. It  is  no  longer  a  contingent  or  speculative  injury,  but 
certain  and  final  to  the  extent  of  the  value  of  the  interest  of 
which  he  has  been  divested. 

In  the  present  case,  as  has  been  said,  the  plaintiff  neither  paid 
the  Manchester  mortgage,  nor  was  he  evicted  under  it.  *  *  * 
His  legal  injury,  imder  the  evidence,  could  not  exceed  the  loss 
he  sustained  on  the  one  lot  to  which  alone  he  had  title  at  the 
time  of  the  foreclosure,  and  not  to  two  lots  which  the  trial  judge 
seems  to  have  assumed  he  owned  at  that  time.  We  think  the 
trial  court  erred  in  directing  a  verdict  for  any  specific  sum,  and 
that  the  order  of  the  general  term  properly  granted  a  new  trial. 


2-iO  DAMAGKy    IN    ACTIONS    ON    CONTUACTS. 

It  is  Tinnooossary  to  pass  upon  the  other  (piostions  argiied.  The 
order  should  he  alVinued,  and  juilgineiit  ahsolute  directed.  All 
concur,  except  Martin,  J.,  absent. 

Order  affirmed,  and  judgment   ahsolute  ordered  for  defend- 
ants, ivith  costs. 


(1)      I{ reach   of  Vendor. 

HOPKINS  V.  LEE. 
United  States  Supreme  Court,  1821.     6  Wheat.  109. 

Error  to  the  Circuit  Court  for  the  District  of  Columbia. 

This  was  an  action  of  covenant,  brought  by  the  defendant 
in  error  (I^ee),  against  the  plaintiff  in  error  (Hopkins),  to  re- 
cover damages  for  not  conveying  certain  tracts  of  military  lands, 
which  the  plaintiff  in  error  had  agreed  to  convey,  upon  the  de- 
fendant in  error  relieving  a  certain  incumbrance  held  by  one 
Rawleigh  Colston,  upon  an  estate  called  Hill  and  Dale,  and 
which  Lee  had  previously  granted  and  sold  to  Hopkins,  and  for 
which  the  military  lands  in  question  were  to  be  received  in  part 
payment.  The  declaration  set  forth  the  covenant,  and  averred 
that  Lee  had  completely  removed  the  incumbrance,  from  Hill 
and  Dale.  The  counsel  for  the  plaintiff  in  error  prayed  the 
court  to  instruct  the  jury,  that  in  the  assessment  of  damages, 
they  should  take  the  price  of  the  military  lands  as  agreed  upon 
by  the  parties  in  the  articles  of  agreement  upon  which  the  action 
was  brought,  as  the  measure  of  damages  for  the  breach  of 
covenant.  But  the  court  refused  to  give  this  instruction,  and 
directed  the  jury  to  take  the  price  of  the  lands,  at  the  time  they 
ought  to  have  been  conveyed,  as  the  measure  of  damages.  To 
this  instruction  the  plaintiff  in  error  excepted;  and  a  verdict 
and  judgment  thereon  being  rendered  for  the  plaintiff  below, 
the  cause  was  brought  by  writ  of  error  to  this  court. 

Livingston,  J.  *  *  *  in  the  assessment  of  damages,  the 
counsel  for  the  plaintiff  in  error  prayed  the  court  to  instruct 
the  jury,  that  they  should  take  the  price  of  the  land,  as  agreed 
upon  by  the  parties  in  the  articles  of  agreement  upon  which  the 
suit  was  brought,  for  their  government.  But  the  court  refused 
to  give  this  instruction,  and  directed  the  jury  to  take  the  price 
of  the  lands,  at  the  time  they  ought  to  have  been  conveyed,  as 
the  measure  of  damages.  To  this  instruction  the  plaintiff  in 
error  excepted.    The  rule  is  settled  in  this  court,  that  in  an  ac- 


CONTRACTS    RELATING    TO    REAL    PROPERTY.  2'±1 

tion  by  the  vtindee  for  a  breach  of  contract  on  the  part  of  the 
vendor,  for  not  delivering  the  article,  the  measure  of  damages 
is  its  price  at  the  time  of  the  breach.  The  price  being  settled 
by  the  contract,  which  is  generally  the  case,  makes  no  difference, 
nor  ought  it  to  make  any;  otherwise  the  vendor,  if  the  article 
have  risen  in  value,  would  always  have  it  in  his  power  to  dis- 
charge himself  from  his  contract,  and  put  the  enhanced  value 
in  his  own  pocket.  Nor  can  it  make  any  difference  in  principle, 
whether  the  contract  be  for  the  sale  of  real  or  personal  prop- 
erty, if  the  lands,  as  is  the  case  here,  have  not  been  improved 
or  built  on,  In  both  cases,  the  vendee  is  entitled  to  have  the 
thing  agreed  for,  at  the  contract  price,  and  to  sell  it  himself  at 
its  increased  value.  If  it  be  withheld,  the  vendor  ought  to  make 
good  to  him  the  difference.  This  is  not  an  action  for  eviction, 
nor  is  the  court  now  prescribing  the  proper  rule  of  damages  in 
such  a  case.  Judgment  affirmed. 


jmargraf  v.  :\iuir. 

Xew  York  1874.     57  N.  Y.  155. 

This  action  was  against  the  vendor  for  specific  performance 
of  a  contract  to  convey  a  lot  of  land,  and  for  damages  for  breach 
of  the  contract  in  ease  it  could  not  be  specifically  performed. 

Earl,  C.  *  *  "  In  this  case  the  referee  denied  the  equit- 
able relief,  but  awarded  damages  for  the  breach  of  the  contract, 
and  in  this  he  did  not  err,  provided  he  adopted  the  proper  rule 
of  damage.  The  referee  allowed  the  plaintiff  as  damages  the 
difference  between  the  contract  price  and  the  value  of  the  land, 
thus  placing  him  in  the  position  he  would  have  been  if  the  con- 
tract had  been  performed.  In  this  I  think  he  erred.  The  gen- 
eral rule,  in  this  State,  in  the  case  of  executory  contracts  for 
the  sale  of  land,  is  that,  in  the  case  of  breach  by  the  vendor,  the 
vendee  can  recover  only  nominal  damages,  unless  he  has  paid 
part  of  the  purchase-money,  in  which  case  he  can  also  recover 
such  purchase-money  and  interest.  (]\Iack  v.  Patchin,  42  N.  Y. 
167 ;  Bush  v.  Cole,  28  Id.  261 ;  Pumpelly  v.  Phelps,  40  Id.  60. 
See,  also.  Lock  v.  Furze,  Law  Rep.  1  C.  P.  441  ;  Engle  v.  Fitch, 
Law  Rep.  3  Q.  B.,  314.)  But  to  this  rule  there  are  some  excep- 
tions based  upon  the  lawful  conduct  of  the  vendor,  as  if  he  is 
guilty  of  fraud  or  can  convey,  but  will  not  either  from  perverse- 
ness  or  to  secure  a  better  bargain,  or,  if  he  has  covenanted  to 

ic 


242  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

convey  when  he  Imew  he  had  no  authority  to  contract  to  convey ; 
or,  where  it  is  in  his  power  to  remedy  a  defect  in  his  title  and 
he  refuses  or  negk^cts  to  do  so,  or  when  he  refuses  to  incur  such 
reasonabk^  expenses  as  would  enable  him  to  fulfil  his  contract. 
In  all  such  cases,  the  vendor  is  liable  to  the  vendee  for  the  loss 
of  the  bargain,  imder  rules  analogous  to  those  applied  in  the  sale 
of  personal  property.  Here  no  fraud  was  perpetrated  on  the 
vendee.  He  knew  that  the  vendor  did  not  have  title  to  the  land, 
and  that  she  could  not  convey  to  him  without  authority  from 
some  court:  and  he,  knowing  that  the  land  was  worth  $2,000, 
may  be  presumed  to  have  known  that  no  authority  could  be  ob- 
tained to  convey  the  land  for  $800,  without,  in  some  way,  prac- 
ticing an  imposition  upon  the  court.  This  latter  knowledge 
she  did  not  have.  Believing,  as  she  did,  that  $800  was  a  fair 
price  for  the  land,  she  had  no  reason  to  doubt  that  she  could  ob- 
tain authority  to  convey.  Further  than  this,  he  knew  that  the 
land  had  been  sold  for  taxes  and  a  lease  given.  This  she  did 
not  know.  Under  these  circumstances,  she  could  not  get  au- 
thority from  the  court  to  make  a  conveyance  upon  behalf  of 
her  minor  children,  and  it  appears  that  she  could  not  procure 
the  tax  title.  Hence  there  is  no  ground  for  imputing  to  her  any 
blame  for  not  making  such  a  conveyance  as  her  contract  called 
for.  These  facts  do  not  call  for  the  application  of  an  excep- 
tional rule  of  damages  in  this  case. 

The  case  of  Pumpelly  v.  Phelps,  supra,  is  the  widest  depart- 
ure from  the  general  rule  of  damages  in  such  case  that  is  to  be 
found  in  the  books.  In  that  case  it  was  held,  that  where  the 
vendor,  in  an  executory  contract  for  the  conveyance  of  land, 
knew  at  the  time  he  made  the  contract  that  he  had  no  title,  al- 
though he  acted  in  good  faith  believing  that  he  could  procure 
and  give  the  purchaser  a  good  title,  he  was  yet  liable  for  the 
difference  between  the  contract  price  and  the  value  of  the 
land.  But  there  are  two  features  which  distinguish  this  case 
from  that.  In  that  ease  the  vendee  did  not  know  that  the  vendor 
had  no  title.  Here  he  did  know  it,  and  he  knew,  also,  that  she 
could  get  no  title  without  imposing  upon  some  court.  Here  also, 
even  if  she  could  have  procured  the  authority  of  some  court 
to  convey,  she  still  would  have  been  unable  to  give  such  a  title 
as  her  contract  called  for,  on  account  of  the  outstanding  tax  title 
which  was  unknown  to  her  when  she  contracted  and  which  she 
could  not  procure. 


CONTRACTS    RELATING    TO    REAL    PROPERTY.  243 

The  plaintiff  agreed,  subsequently,  to  the  making  of  the  con- 
tract, if  defendant  would  abate  $100  from  the  contract  price, 
that  he  would,  at  his  expense,  conduct  the  proceedings  to  pro- 
cure from  the  court  authority  to  convey,  she  co-operating  with 
him,  and  would  take  a  conveyance  subject  to  the  tax  title.  This 
did  not  alter  the  position  of  the  parties  so  as  to  affect  this  case. 
She  was  in  no  sense  culpable  in  not  co-operating  with  him  in 
imposing  upon  some  court,  and,  to  shield  her  from  the  damages 
claimed  in  this  case,  she  was  not  obliged  to  allow  him  anything 
on  account  of  the  tax  title.  I  am,  therefore,  of  opinion  that  the 
referee  erred  in  the  rule  of  damages  applied.  The  recovery 
should  have  been  confined  to  the  purchase-money  paid  (twenty- 
five  dollars)  and  the  interest  thereon.     *     *     * 

All  concur.  Order  affirmed  and  judgment  accordingly. 


a       Breach  of  Covenant  of  Title. 

STAATS  V.  TEN  EYCK. 
New  York,  1805.     3  Caines,  111. 

On  the  7th  of  January,  1793,  the  testator,  Barent  Ten  Eyck, 
by  indenture  of  release,  in  consideration  of  £700  granted,  bar- 
gained, and  sold  to  the  plaintiff,  and  one  Dudley  Walsh,  in 
fee,  two  lots  of  ground  in  the  city  of  Albany,  covenanting,  ' '  That 
he  the  grantor  was  the  true  and  lawful  owner;  that  he  was 
lawfully  and  rightfully  seized  in  his  own  right  of  a  good  and 
indefeasible  estate  of  inheritance  in  the  premises;  that  he  had 
full  power  to  sell  in  fee-simple,  and  that  the  grantees  should 
forever  peaceably  hold  and  enjoy  the  premises  without  the  in- 
terruption or  eviction  of  any  person  whatever,  lawfully  claim- 
ing same."  In  the  month  of  May  following,  Walsh,  for  a  valu- 
able consideration,  conveyed  his  moiety  of  these  lots  to  Staats, 
who,  on  the  30th  of  October,  1802,  after  due  possession,  by  lease 
and  release,  granted  one  of  them  to  Margaret  Chim  in  fee,  and 
covenanted  to  warrant  and  defend  her  in  the  peaceable  posses- 
sion thereof.  In  August,  1803,  an  ejectment  was  brought  against 
Margaret  Chim,  in  which  a  judgment  was  obtained  for  a  moiety 
of  the  lot  sold  to  her,  execution  sued  out,  and  this  followed  by  a 
recovery  in  an  action  for  the  mesne  profits.  The  value  of  the 
lot,  from  the  moiety  of  which  Margaret  Chim  was  thus  evicted, 
was  at  the  time  of  the  sale  by  Ten  Eyck  £300,  and  that  was  thf 


244  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

coiisidoration  paid  for  it.  ^Margaret  Cliim,  being  thus  evicted, 
brouglit  hor  actiou  against  the  phuutift',  and  re-covered  for  the 
moiety  she  had  lost. 

Upon  these  facts,  which  were  submitted  without  argument,  the 
following  (piestions  were  raised  for  i\\e  determination  of  the 
court.  1st.  Whether  the  plaintiff  was  entitled,  imder  the  cov- 
enants in  Ten  Eyck's  release,  to  recover  any  more  than  a  moiety 
of  the  consideration  money  paid  for  the  lot  from  which  ]\Iargaret 
Chim  was  evicted  ?  2d.  Whether  the  interest  of  that  consider- 
ation, and  the  increased  value  of  the  premises  from  the  d.ate  of 
the  deed  to  Margaret  Chim  ought  to  be  added?  3d.  Whether 
the  plaintiff  was  entitled  to  any  retribution  for  the  costs  and 
damages  he  had  sustained  by  the  eviction  and  recoveries  before 
mentioned  ? 

Kent,  C.  J.  This  case  resolves  itself  into  these  two  points  for 
inquiry:  1st.  Whether,  upon  the  covenants,  the  plaintiff  be 
entitled  to  recover  the  value  of  the  moiety  of  one  lot  at  the  time 
of  eviction,  or  only  at  the  time  of  the  purchase,  and  to  be  ascer- 
tained by  the  consideration  given  ?  2d.  If  the  latter  be  the  rule 
of  damages,  then,  whether  the  plaintiff  be  also  entitled  to  re- 
cover interest  upon  the  purchase-money,  and  the  costs  of  the 
eviction  ? 

1.  There  are  two  covenants  contained  in  the  deed;  the  one, 
that  the  testator  was  seized  in  fee,  and  had  good  right  to  convey ; 
the  other,  that  the  grantee  should  hold  the  land  free  from  any 
lawful  disturbance  or  eviction.  The  present  case  does  not  state 
distinctly  whether  the  eviction  was  founded  upon  an  absolute 
title  to  a  moiety  of  one  lot,  or  upon  some  temporary  encum- 
brance. But  I  conclude  from  the  manner  of  stating  the  questions, 
and  so  I  shall  assume  the  fact  to  be,  that  the  testator  was  not 
seised  of  the  moiety  so  recovered  when  he  made  the  conveyance, 
and  had  no  right  to  convey  it.  The  last  covenant  cannot,  then, 
in  this  case,  have  any  greater  operation  than  the  first,  and  I 
shall  consider  the  question  as  if  it  depended  upon  the  first  cov- 
enant merely. 

At  common  law,  upon  a  writ  of  warrantia  chartce,  the  de- 
mandant recovered  in  compensation  only  the  value  for  the  land 
at  the  time  of  the  warranty  made,  and  although  the  land  had 
become  of  increased  value  afterwards,  by  the  discovery  of  a 
mine,  or  by  buildings,  or  otherwise,  yet  the  warrantor  was  not 
to  render  in  value  according  to  the  then  state  of  things,  but  as 


CONTRACTS    RELATING   TO    REAL    PROPERTY.  245 

the  land  was  when  the  warranty  was  made.  Bro.  Abr.  tit. 
Voucher,  pi.  69;  Ibid.  tit.  Reeouver  in  Value,  pi.  59;  22  Vin. 
144-146 ;  Tb.  pi.  1,  2,  9 ;  Ub.  pi.  1,  2,  3 ;  1  Reeves'  Eng.  Law,  448. 
This  recompense  in  value,  or  excambium,  as  it  was  anciently- 
termed,  consisted  of  lands  of  the  warrantor,  or  which  his  heir 
inherited  from  him,  of  equal  value  with  the  land  from  which 
the  feoffee  was  evicted.  Glanville,  1.  3,  c.  4;  Bracton,  384,  a.  b. 
That  this  was  the  ancient  and  uniform  rule  of  the  English  law, 
is  a  point,  as  I  apprehend,  not  to  be  questioned ;  yet,  in  the  early 
ages  of  the  feudal  law  on  the  continent,  as  it  appears  (Feud- 
orum,  lib.  2,  tit.  25),  the  lord  was  bound  to  recompense  his  vas- 
sal on  eviction,  with  other  lands  equal  to  the  value  of  the  feud 
at  the  time  of  eviction;  feudum  restituat  ejusdem  astimationis 
quod  erat  tempore  rei  judicatce.  But  there  is  no  evidence  that 
this  rule  ever  prevailed  in  England;  nor  do  I  find,  in  any  case, 
that  the  law  has  been  altered  since  the  introduction  of  personal 
covenants,  to  the  disuse  of  the  ancient  warranty.  These  cove- 
nants have  been  deemed  preferable,  because  they  secure  a  more 
easy,  certain,  and  effectual  recovery.  But  the  change  in  the 
remedy  did  not  affect  the  established  measure  of  compensation, 
nor  are  we  at  liberty  now  to  substitute  a  new  rule  of  damages 
from  mere  speculative  reasoning,  and  that  too  of  doubtful  solid- 
ity. In  warranties  upon  the  sale  of  chattels  the  law  is  the  same 
as  upon  the  sale  of  lands,  and  the  buyer  recovers  back  only  the 
original  price.  1  H.  Black.  17.  This  is  also  the  rule  in  Scotland, 
as  to  chattels.  1  Ersk.  206.  Our  law  preserves  in  all  its  branches 
symmetry  and  harmony  upon  this  subject.  In  the  modern  case 
of  Flureau  v.  Thornhill,  2  Black.  Rep.  1078,  the  court  of  K.  B. 
laid  dowTi  this  doctrine,  that  upon  a  contract  for  a  purchase 
of  land,  if  the  title  prove  bad,  and  the  vendor  is  without  fraud 
incapable  of  making  a  good  one,  the  purchaser  is  not  entitled  to 
damages  for  the  fancied  goodness  of  his  bargain.  The  return 
of  the  deposit  money,  with  interest  and  costs,  was  all  that  was 
to  be  expected. 

Upon  the  sale  of  lands  the  purchaser  usually  examines  the 
title  for  himself,  and  in  case  of  good  faith  between  the  parties 
(and  of  such  cases  only  I  now  speak),  the  seller  discloses  his 
proofs  and  knowledge  of  the  title.  The  want  of  title  is,  there- 
fore, usually  a  case  of  mutual  error,  and  it  would  be  ruinous 
and  oppressive  to  make  the  seller  respond  for  any  accidental  or 
extraordinary  rise  in  the  value  of  the  land.     Still  more  burden- 


246  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

some  would  the  rule  seem  to  be  if  that  rise  was  owing  to  the 
taste,  fortune,  or  luxury  of  the  purchaser.  No  man  could  vent- 
ure to  sell  an  acre  of  ground  to  a  wealthy  purchaser,  without 
the  hazard  of  absolute  ruin.  The  hardship  of  this  doctrine  has 
been  ably  exposed  by  Lord  Kaimes  in  his  examination  of  a  de- 
cision in  the  Scotch  law,  that  the  vendor  was  bound  to  pay  ac- 
cording to  the  increased  value  of  the  land.  1  Kaimes'  Eq.  284- 
303 ;  1  Ersk.  206. 

If  the  question  was  now  res  Integra,  and  we  were  in  search 
of  a  fit  rule  for  the  occasion,  I  know  of  none  less  exception- 
able than  the  one  already  established.  By  the  civil  law  the 
seller  was  bound  to  restore  the  value  of  the  subject  at  the  time 
of  eviction,  but  if  the  thing  had  been  from  any  cause  sunk  be- 
low its  original  price,  the  seller  was  entitled  to  avail  himself  of 
this  and  pay  no  more  than  the  thing  was  then  worth;  for  the 
Eoman  law,  with  its  usual  and  admirable  equity,  made  the  rule 
equal  and  impartial  in  its  operation.  It  did  not  force  the  seller 
to  bear  the  risk  of  the  rise  of  the  commodity  without  also  taking 
his  chance  of  its  fall.  Dig.  lib.  21,  tit.  2,  1.  78 ;  Ibid.  1.  66,  §  3 ; 
Ibid.  1.  64,  §  1.  So  far  the  rule  in  that  law  appeared  at  least 
clear  and  consistent ;  but  "wath  respect  to  beneficial  improvements 
made  by  the  purchaser,  the  decisions  in  the  Code  and  Pandects 
are  jarring  and  inconsistent  with  each  other,  and  betray  evi- 
dent perplexity  on  this  difficult  question.  Dig.  lib.  19,  tit.  1, 
45,  §  1;  Cod.  lib.  8,  tit.  45,  1.  q.,  and  Perezius  thereon.  The 
more  just  opinion  seems  to  be,  that  the  claimant  himself,  and 
not  the  seller,  ought  to  pay  for  them,  for  nemo  debet  locuple- 
tari  aliena  jactura,  and  this  rule  has,  according  to  Lord  Hard- 
wicke,  been  several  times  adopted  and  applied  by  the  English 
Court  of  Chancery.  East  In.  Com.  v.  Vincent,  2  Atk.  38.  While 
on  this  question,  I  hope  it  may  not  be  deemed  altogether  im- 
pertinent to  observe,  that  in  the  late  digest  of  the  Hindu  law, 
compiled  under  the  auspices  of  Sir  William  Jones,  the  question 
before  us  is  stated  and  solved  with  a  precision  at  least  equal 
to  that  in  the  Roman  code,  and  it  is  in  exact  conformity  with 
the  English  law.  On  a  sale  declared  void  by  the  judge  for  want 
of  ownership,  the  seller  is  to  pay  the  price  to  the  buyer,  and 
what  price?  asks  the  Hindu  commentator.  Is  it  the  price 
actually  received,  or  the  present  value  of  the  thing?  The  answer 
is,  the  price  for  which  it  was  sold;  the  price  agreed  on  at  the 
time  of  the  sale,  and  received  by  the  seller;  and  this  price  shall 


CONTRACTS   RELATING   TO   REAL   PROPERTY.  247 

be  recovered,  although  the  value  may  have  been  diminished.  1 
Colebrook's  Digest,  478,  479.  Before  I  conclude  this  head,  I 
ought  to  observe,  that  in  the  present  case  it  does  not  appear 
that  any  beneficial  improvements  have  been  made  upon  the 
premises  since  the  purchase  by  the  plaintiff,  and  although  some 
of  my  observations  have  been  more  general  than  the  precise 
facts  in  the  case  required,  yet  the  opinion  of  the  court  is  not 
intended  to  be  given,  or  to  reach  beyond  the  case  before  us. 

2.  The  next  point  arising  in  this  case  is,  whether  the  plaint- 
iff is  entitled  to  recover  interest  upon  the  purchase-money,  and 
the  costs  of  eviction?  It  is  evident,  that  originally  the  vendee 
recovered  only  what  was  deemed  equivalent  to  the  purchase- 
money  without  interest;  for  he  recovered  other  lands  equal 
only  in  value  to  the  lands  sold  at  the  time  of  the  sale.  The  rule 
would  have  been  the  same  at  this  day,  had  not  the  action  for 
mesne  profits  been  introduced,  which  takes  away  from  the  pur- 
chaser the  intermediate  profits  of  the  land.  As  long  as  he  was 
permitted  to  reap  the  rents  and  profits,  they  formed  a  just  com- 
pensation for  the  use  of  this  money.  Whether  the  action  for 
mesne  profits  has  not  been  carried  too  far  in  our  law,  by  ex- 
tending it  to  all  cases,  instead  of  confining  it  to  a  mala  fide  pos- 
session, it  is  now  too  late  to  inquire.  I  should  have  strong  doubts 
at  least,  upon  the  present  rule,  if  the  question  was  new,  but  con- 
sidering it  as  the  established  rule,  that  the  action  for  mesne 
profits  lies  generally,  I  am  of  opinion  that  the  seller  is  as  gen- 
erally bound  to  answer  for  the  interest  of  the  purchase-money, 
and  that  the  interest  ought  to  be  commensurate  in  point  of  time, 
with  the  legal  claim  to  the  mesne  profits.  This  right  to  interest 
rests  on  very  plain  principles.  The  vendor  has  the  use  of  the 
purchase-money,  and  the  vendee  loses  the  equivalent  by  the  loss 
of  the  mesne  profits.  The  interest  ought  to  commence  from  the 
time  of  the  loss  of  the  mesne  profits.  That  time  is  not  specifically 
stated  in  the  present  case,  and  the  presumption  is,  that  they  were 
recovered  from  the  date  of  the  plaintiff's  purchase,  and  from 
that  time,  I  think,  the  interest  ought  to  be  calculated  on  the 
consideration  sum. 

As  to  the  costs  of  suit  attending  the  eviction  stated  in  the 
case,  it  is  very  clear  that  the  defendants  are  responsible  imder 
the  covenant,  for  the  testator  was  bound  to  defend  and  protect 
the  plaintiff  and  his  assigns  in  the  title  he  had  conveyed.  At 
common  law,  he  might  have  been  vouched  to  come  in,  and  been 


248  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

substituted  as  a  real  dei'eiidant  in  the  suit,  liut  the  defendants 
are  not  answerable  for  the  eosts  of  the  suit  for  mesne  proiits, 
as  there  the  testator  was  not  bound  to  defend. 

My  opinion  accordingl.y  is,  that  the  plaintiff  in  the  present 
case  is  entitled  to  recover  the  consideration  paid  for  the  moiety 
of  the  lot  evicted,  together  with  interest  thereon  from  the  date 
of  the  purchase,  and  the  costs  of  suit  in  ejectment  for  the  re- 
covery of  the  same. 

Livingston,  J.  To  find  a  proper  rule  of  damage  in  a  case 
like  this  is  a  work  of  some  difficulty;  no  one  will  be  entirely 
free  from  objection,  or  not  at  times  work  injustice.  To  refund 
the  consideration,  even  with  interest,  may  be  a  very  inadequate 
compensation,  when  the  property  is  greatly  enhanced  in  value, 
and  when  the  same  money  might  have  been  laid  out  to  equal 
advantage  elsewhere.  Yet  to  make  this  increased  vajue  the  cri- 
terion where  there  has  been  no  fraud,  may  also  be  attended  with 
injustice,  if  not  ruin.  A  piece  of  land  is  bought  solely  for  the 
purposes  of  agriculture ;  by  some  unforeseen  turn  of  fortune,  it 
becomes  the  site  of  a  populous  city,  after  which  an  eviction  takes 
place.  Every  one  must  perceive  the  injustice  of  calling  on  a 
iona  fide  vendor  to  refund  its  present  value,  and  that  fejK  for- 
tunes could  bear  the  demand.  Who,  for  the  sake  of  one  hundred 
pounds,  would  assiune  the  hazard  of  repaying  as  many  thou- 
sands, to  which  value  the  property  might  rise,  by  causes  not  fore- 
seen by  either  party,  and  which  increase  in  worth  would  confer 
no  right  on  the  grantor  to  demand  a  further  sum  of  the  grantee. 
The  safest  general  rule  in  all  actions  on  contract,  is  to  limit  the 
recovery  as  much  as  possible  to  an  indemnity  for  the  actual 
injury  sustained,  without  regard  to  the  profits  which  the  plain- 
tiff h9,s  failed  to  make,  unless  it  shall  clearly  appear,  from  the 
agreement,  that  the  acquisition  of  certain  profits  depended  on  the 
defendant's  punctual  performance,  and  that  he  had  assumed  to 
make  good  such  a  loss  also.  To  prevent  an  immoderate  assess- 
ment of  damages,  when  no  fraud  had  been  practiced,  Justinian 
directed  that  the  thing  which  was  the  object  of  contract  should 
never  be  valued  at  more  than  double  its  cost.  This  rule  a  writer 
on  civil  law  applies  to  a  case  like  the  one  before  us;  that  is,  to 
the  purchase  of  land  which  hgd  become  of  four  times  its  original 
value  when  an  eviction  took  place ;  but,  according  to  this  rule, 
the  party  could  not  recover  more  than  twice  the  sum  he  had 
paid.    This  law  is  considered  by  Pothier  as  arbitrary,  so  far  as 


CONTRACTS   RELATING   TO   REAL    PROPERTY.  249 

it  confines  the  reduction  of  the  damages  to  precisely  double  the 
value  of  the  thing,  and  is  not  binding  in  France  j  but  its 
principle,  which  does  not  allow  an  innocent  party  to  be  rendered 
liable  beyond  the  sum,  on  which  he  may  reasonably  have  calcu- 
lated, being  founded  in  natural  law  and  equity,  ought  in  his 
opinion  to  be  followed,  and  care  taken  that  damages  in  the  cases 
be  not  excessive.  Rather  than  adhere  to  the  rule  of  Justinian, 
or  leave  the  matter  to  the  opinion  of  a  jury,  as  to  which  may,  or 
may  not  be  excessive,  some  more  certain  standard  should  be 
fixed  on.  However  inadequate  a  return  of  the  purchase-money 
must  be  in  many  cases,  it  is  the  safest  measure  that  can  be  fol- 
lowed as  a  general  rule.  This  is  all  that  one  party  has  received, 
and  all  the  actual  injury  occasioned  by  the  other.  I  speak  now 
of  a  case,  and  such  is  the  present,  where  the  grantee  has  not 
improved  the  property  by  buildings  or  otherwise,  but  where  the 
land  has  risen  in  value  from  extensive  causes.  What  may  be  a 
proper  course,  when  dwelling-houses  or  other  buildings,  and  im- 
provements have  been  erected,  we  are  not  now  determining.  Why 
should  a  purchaser  of  land  recover  more  than  he  has  paid,  any 
more  than  the  vendee  of  a  house  or  a  ship?  If  these  articles 
rise  in  value,  the  vendors  would  hardly,  if  there  be  no  fraud,  be 
liable  to  damages  beyond  the  prices  they  had  received  with  in- 
terest and  costs,  unless  the  plaintiffs  could  show  some  further 
acjfcual  injury  which  they  had  sustained  in  consequence  of  the 
bargain.  The  English  books  afford  but  little  light  on  this  point, 
although  it  is  understood  to  be  the  rule  in  Great  Britain  to  give 
only  the  consideration  of  the  deed.  The  only  thing  to  be  foimd 
any  ways  relating  to  the  subject,  is  in  the  Year  Books  in  Hilary 
Term,  6  Edw.  II.,  part  1,  187,  It  is  there  said,  that  in  a  writ 
of  dower  after  the  lands  had  been  improved  by  the  feoffee,  they 
shall  J)e  extended  or  set  off  to  the  widow,  according  to  the  value 
at  the  time  of  alienation ;  and  the  reason  assigned  by  Hargrave 
in  his  notes  on  Coke  on  Littleton,  which  is  not,  however,  found 
in  the  Year  Books,  is,  ''that,  the  heir  not  being  bound  to  war- 
rant, except  according  to  the  value  of  the  land  at  the  time  of  the 
feoffment,  it  is  unreasonable  the  widow  should  recover  more  of 
the  feoffee  than  he  could,  in  case  of  eviction,  of  the  feoffor." 
In  Connecticut,  on  the  contrary,  damages  are  ascertained  by  the 
value  at  the  time  of  eviction,  because  of  land's  increasing  worth, 
which  is  the  very  reason,  perhaps,  it  should  be  otherwise.  And 
although  the  English  practice  be  adverted  to  by  the  court  in 


250  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

giving:  its  opinion,  it  is  supposed  to  be  founded  on  the  perman- 
ent value  of  their  hauls;  but  when  we  recollect  that  this  has  been 
the  rule  in  Great  Britain,  at  least  from  the  commencement  of  the 
fourtet'uth  century,  since  which  time  lands  have  greatly  ad- 
vanced in  price,  we  must  attribute  its  origin  to  some  other  cause ; 
probably  to  its  intrinsic  justice  and  merit.  Even  in  Connecticut, 
the  rule  applies  only  to  actions  on  covenant  of  warranty,  and 
probably  not  to  those  on  covenant  of  seisin,  because,  in  the  latter 
case,  it  is  supposed  the  party  may  immediately  acquaint  him- 
self with  the  strength  of  his  title,  and  bring  his  action  as  soon  as 
he  discovers  it  is  defective.  This  reason  is  not  very  satisfactory, 
for  with  all  his  diligence  a  long  time  may  elapse  before  his  title 
is  called  in  question,  or  doubts  or  suspicions  raised  about  its 
validity. 

Without  saying,  then,  what  ought  to  be  the  rule,  where  the 
estate  has  been  improved  after  purchase,  my  opinion  is,  that 
where  there  has  been  no  fraud,  and  none  is  alleged  here,  the 
party  evicted  can  recover  only  the  sum  paid,  with  interest  from 
the  time  of  payment,  where,  as  is  also  the  case  here,  the  pur- 
chaser derived  no  benefit  from  the  property  owing  to  a  defec- 
tive title.  The  plaintiff  must  also  be  reimbursed  the  costs  sus- 
tained by  the  action  of  ejectment.  It  was  his  duty  to  defend  the 
property,  and  the  costs  to  which  he  has  been  exposed  being  an 
actual,  not  an  imaginary  loss,  arising  from  the  defendant's  want 
of  title,  he  ought  to  be  made  whole.  In  costs  are  included 
reasonable  fees  of  counsel,  as  well  as  those  which  are  taxable. 
If  a  grantee  be  desirous  of  receiving  the  value  of  land  at  the  time 
of  eviction,  he  may  by  apt  covenants  in  the  deed,  if  a  grantor 
will  consent,  secure  such  benefit  to  himself. 

The  other  judges  concurred. 

Judgment  for  the  plaintiff. 


"If  a  person  enters  Into  a  contract  for  the  sale  of  a  real  estate,  know- 
ing that  he  has  no  title  to  it,  nor  any  means  of  acquiring  it,  the  pur- 
chaser cannot  recover  damages  beyond  the  expenses  he  has  incurred." 
He  gets  nothing  for  the  loss  of  the  bargain.  He  can  recover  the  sum 
paid  down  by  him  with  interest.  Bain  v.  Fothergill,  Hof  L.  1874,  L.  R. 
7  H.  L.  ]r)S;  Gray  v.  Ilowell,  205  Pa.  211;  Old  Colony  R.  R.  v.  Evans,  6 
Gray  2.5 ;  Williams  v.  Thrall,  101  Wis.  337. 

For  injury  to  realty  by  condemnation  under  eminent  domain  and  ap- 
portionment of  damages,  see  Matter  of  City  of  New  York,  193  N.  Y.  117. 

In  Wragg  v.  Mead,  120  Iowa  319,  defendant  had  conveyed  land  by  a 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  251 

deed  containing  a  covenant  against  incumbrances.  In  fact  there  was 
an  outstanding  lease  of  the  premises  conveyed.  Held,  that  the  n  easure 
of  damages  is  the  rental  value  of  the  land  for  the  unexpired  term. 


2.     Contracts  Relating  to  Personal  Property 

WHITE  V.  SOLOMON. 

Massachusetts,   1895.     164   Mass.     516. 

Holmes,  J. 

This  is  an  action  upon  the  following  contract:  Messrs.  J.  T. 
White  &  Co.,  Publishers,  New  York —  Gentlemen :  Please  deliver, 
according  to  shipment  directions  given  below,  one  White's 
Physiological  Manikin,  Medical  Edition,  price  $35.00.  In  con- 
sideration of  its  delivery  for  me,  freight  prepaid,  at  the  express 
office  specified  below,  I  promise  to  pay  the  sum  of  $35.00,  as  fol- 
lows :  $10.00  upon  delivery  at  the  express  office,  and  the  balance 
in  monthly  payments  of  $5.00,  each  payable  on  the  first  of  each 
and  every  month  thereafter,  until  the  whole  amount  is  paid,  for 
which  the  publishers  are  authorized  to  draw  when  due. 

"It  is  expressly  hereby  agreed  that,  in  case  of  the  failure  to 
pay  any  onei  of  the  said  installments  after  maturity  thereof,  all 
of  said  installments  remaining  unpaid  shall  immediately  become 
due  and  payable,  and  the  said  James  T.  White  &  Co.,  may  take, 
or  cause  to  be  taken,  the  said  manikin  from  the  possession  of 
the  said  subscriber  or  their  representatives,  to  whom  he  may 
have  delivered  the  same,  without  recourse  against  said  James  T. 
White  &  Co.  for  any  monej'  paid  on  account  thereof;  it  being 
expressly  agreed  that  the  money  paid  on  account  shall  be  for 
the  use  and  wear  of  said  manikin.     *     *     * 

"James  M.  Solomon,  75  Court  Street.     *     *     * 

"Boston,  Mass." 

There  was  evidence  that  the  manikin  was  delivered,  as  agreed, 
to  the  express  company,  freight  prepaid;  that  the  defendant 
refused  to  receive  it ;  that,  in  consequence,  the  express  company, 
after  a  time,  left  the  manikin  at  the  plaintiffs'  place  of  business, 
in  pursuance  of  a  rule  of  the  company,  and  without  the  plaint- 
iffs' assent;  and  that  it  is  held  subject  to  the  defendant's  order. 
There  had  been  no  repudiation  of  the  contract  by  the  defend 
ant  before  the  delivery  of  the  manikin.     *     *     * 


252  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

In  an  ordinarj'  contract  of  sale,  the  payment  and  the  transfer 
of  the  goods  are  to  be  concurrent  acts;  and  if  the  buyer  refuses 
to  accept  the  goods,  even  wrongfully,  he  cannot  be  sued  for  the 
price,  because  the  event  on  which  he  undertook  to  pay  the  price 
has  not  happened;  and,  although  the  fact  that  it  has  not  hap- 
pened is  due  to  his  own  wrong,  still  he  has  not  promised  to  pay 
the  price  in  the  present  situation,  but  must  be  sued  for  his 
breach  of  contract  in  preventing  the  event  on  which  the  price 
would  be  due  from  coming  to  pass.  The  damages  for  such  a 
breach  necessarily  would  be  diminished  by  the  fact  that  the 
vendor  still  had  the  title  to  the  goods.  But  in  the  case  at  bar 
the  buyer  has  said  in  terms  that  although  the  title  does  not  pass 
by  the  delivery  to  the  express  company,  if  it  does  not,  delivery 
shall  be  the  whole  consideration  for  an  immediate  debt  (partly 
solvendum  in  futuro),  of  the  whole  value  of  the  manikin,  and 
that  the  passing  of  the  title  shall  come  as  a  future  advantage  to 
him  when  he  has  paid  the  whole.  The  words  "in  consideration 
of  delivery"  are  not  accidental  or  insignificant.  The  contract  is 
carefully  drawn,  so  far  as  to  make  clear  that  the  vendors  intend 
to  reserve  unusual  advantages  and  to  impose  unusual  burdens. 
»  *  *  "When,  as  here,  by  the  terms  of  the  contract,  every 
condition  has  been  complied  with  which  entitles  the  vendors 
to  the  whole  sum,  and,  if  the  vendors  afterwards  have  not  either 
broken  the  contract  or  done  any  act  diminishing  the  rights  given 
them  in  express  words,  the  buyer  cannot,  by  an  act  of  his  own 
repudiating  the  title,  gain  a  right  of  recoupment,  or  otherwise 
diminish  his  obligation  to  pay  the  whole  sum  which  he  has 
promised.    See  Smith  v.  Bergengren,  153  Mass.  236,  238. 

If  the  first  payment  of  $10  upon  delivery  were  to  be  made  upon 
delivery  to  the  buyer,  it  well  may  be  that,  if  the  buyer  refused 
to  accept  the  manikin  or  to  pay  the  $10,  the  sellers'  only  remedy 
would  be  for  a  breach,  and  that  they  could  not  leave  the  manikin 
at  his  house,  and  waive  the  payment  against  his  will,  with  the 
result  of  making  the  whole  sum  due.  But  here  the  delivery  is 
to  be  to  an  express  company,  and  the  provision  for  payment  of 
$10  "upon  delivery  at  the  express  office"  must  mean  after  the 
delivery ;  so  that  the  delivery  is  the  first  act,  and  by  itself,  without 
more,  fixes  the  rights  of  the  vendors  to  the  price,  just  as  the 
transfer  of  the  stock  did  in  Thompson  v.  Alger,  12  Mete.  (Mass.) 
428,  444.       *     *     *  Exceptions  overruled. 

Field,  C.  J.,  and  Justices  Allen  and  ^Morton  dissent. 


CONTRACTS   RELATING    TO   PERSONAL   PROPERTY.  253 

1)     Bailment. 

KEITH  V.  DE  BUSSIGNEY. 

Massachusetts,  1901.     179  Mass.  255. 

Action  to  recover  an  amount  paid  on  a  judgment  rendered 
against  plaintiff  for  board  of  defendants'  horse,  received  by 
plaintiff  under  an  agreement  providing  that  the  horse  should  be 
suitable  for  ordinary  family  use,  or  a  reasonable  amount  for  such 
board.  From  a  judgment  in  favor  of  plaintiff,  defendants  bring 
exceptions. 

Knowlton,  J.  The  evidence  introduced  and  offered  had  no 
tendency  to  prove  a  conversion  of  the  horse  by  the  plaintiff.  It 
went  no  further  than  to  show  that  the  horse  had  been  used  in 
plowing  greensward  and  in  drawing  heavy  loads  to  Boston,  and 
that  it  was  not  in  good  condition  when  the  plaintiff  endeavored 
to  return  it.  Even  if  a  jury  might  have  found  from  the  evidence 
that  the  plaintiff  had  not  properly  used  and  fed  the  horse,  they 
could  not  have  found  that  she  had  exercised  dominion  over  it  ad- 
verse to  the  defendants'  rights,  in  such  a  way  as  to  make  her 
liable  for  a  conversion  of  it.  At  most,  it  would  only  have  war- 
ranted a  finding  of  negligence  or  breach  of  contract  on  the  part 
of  the  plaintiff,  for  which  she  was  liable  in  damages.  The  horse 
remained  the  property  of  the  defendants,  and  it  was  their  duty 
to  receive  it  when  the  plaintiff  brought  it  back.  On  the  issue  of 
liability  the  evidence  was  rightly  excluded,  and  the  first  two  of 
the  defendants'  requests  for  instructions  were  rightly  refused. 

The  third  request  was  as  follows :  * '  The  plaintiff,  after  the  de- 
fendants refused  to  receive  the  horse,  even  if  there  was  no  fault 
on  her  part,  and  she  had  performed  all  the  obligations  imposed 
on  her  by  law  or  by  the  contract,  should  do  with  it  as  persons  of 
ordinary  experience  and  prudence  would  have  done  with  it,  hav- 
ing reference  to  its  value  and  all  other  circumstances.  If  the 
horse  was  of  little  value,  the  fact  that  the  defendants  refused  to 
receive  it  would  not  justify  the  plaintiff  in  keeping  and  board- 
ing it  for  a  long  time,  or  at  a  relatively  great  expense,  either  in 
her  own  stable  or  elsewhere.  She  should,  after  a  reasonable  time, 
have  taken  further  steps  to  determine  what  disposition  should  be 
made  of  the  horse,  or  have  taken  means  to  dispose  of  it,  as  she 
could  have  done  under  the  statutes  of  this  commonwealth."  The 
judge  refused  to  give  this  instruction,  and  ruled  that  the  only 


254  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

question  for  the  jury  to  determine  was  what  was  a  reasonable  sum 
for  the  keeping  of  the  horse  after  the  time  when  the  plaintiff 
offered  to  return  it  and  the  defendants  refused  to  take  it  back. 
We  are  of  opinion  that  this  ruling  was  wrong.  This  was  the  sit- 
uation of  the  parties:  The  plaintiff  had  received  the  defendants' 
horse  under  a  bailment  for  hire,  by  the  terms  of  which  she  was 
to  have  the  use  of  it  for  its  board  and  keeping.  The  time  at  which 
this  bailment  was  to  terminate  had  arrived,  and  the  plaintiff  had 
taken  the  horse  back  to  the  defendants,  and  they  had  refused  to 
receive  it.  There  was  no  contract  at  any  time  by  which  she  was 
to  board  the  horse  at  the  defendants '  expense.  They  denied  that 
they  had  any  interest  in  the  horse,  contended  that  she  had  con- 
verted it  to  her  own  use,  and  virtually  forbade  her  to  do  or  ex- 
pend anything  on  their  account  for  the  care  or  preservation  of 
it.  There  are  at  least  two  possible  opinions  as  to  the  legal  rela- 
tions of  the  parties  and  the  principles  of  law  by  which  their 
rights  are  to  be  determined.  One  is  that  suggested  by  the  cases 
of  Whiting  v.  Sullivan,  7  Mass.  107,  Earle  v.  Coburn,  130  Mass. 
596,  and  Putnam  v.  Glidden,  159  Mass.  47.  In  this  view  the  rules 
of  law  applicable  to  the  case  may  be  stated  as  follows :  It  is  set- 
tled that,  under  circumstances  like  those  in  this  case,  the  law  will 
not  imply  a  contract  to  reimburse  one  for  the  care  of  property 
against  an  owner  who  has  expressly  or  impliedly  declined  to  per- 
mit such  care  to  be  given  on  his  account.  No  different  principle 
is  applied  when  the  property  is  a  live  animal  from  that  applicable 
to  ordinary  goods.  In  each  of  the  three  cases  cited  the  owner  of 
a  horse  which  was  in  possession  of  another  person  refused  to  re- 
ceive it,  and  the  court  held  that  he  was  not  liable  for  its  keeping 
to  the  person  in  whose  possession  it  was  left.  The  rule  is  that  one 
cannot  be  held  liable  on  an  implied  contract  to  pay  for  that  which 
he  declines  to  permit  to  be  done  on  his  account.  The  exception 
to  the  rule  is  that,  when  the  law  imposes  upon  one  an  obligation 
to  do  something  which  he  declines  to  do,  and  which  must  be  done 
to  meet  some  legal  requirement,  the  law  treats  performance  by 
another  as  performance  for  him,  and  implies  a  contract  on  his 
part  to  pay  for  it.  A  familiar  illustration  of  this  is  seen  when 
the  law  holds  one  liable  for  necessaries  furnished  to  his  wife,  if 
he  has  without  cause  refused  to  provide  for  her.  But  there  is  no 
such  obligation  upon  one  to  retain  and  preserve  his  property, 
whether  it  be  live  animals  or  anything  else.  He  may  destroy  or 
abandon  it,  provided  he  does  not  thereby  imperil  the  person  or 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  255 

property  of  another.    In  the  present  ease  the  plaintiff  had  no 
right,  against  the  will  of  the  defendants,  to  expend  money  for  the 
care  and  preservation  of  their  horse  on  their  account.    The  only 
liability  of  the  defendants  to  her  was  a  liability  in  damages  for 
their  refusal  to  receive  their  horse  when  she  returned  it.    By  the 
terms  of  the  original  bailment  they  impliedly  agreed  to  receive 
it,  and  relieve  the  plaintiff  of  it,  when  she  should  bring  it  back, 
after  the  time  for  her  keeping  it  had  expired.  Their  refusal  to  re- 
ceive it  was  a  breach  of  their  contract,  and  for  such  damage  as 
resulted  directly  from  their  refusal  the  plaintiff  can  recover. 
But  that  damage  includes  only  the  loss  or  expense  that  has  fallen, 
or  necessarily  would  fall,  upon  the  plaintiff  in  ridding  herself 
of  the  horse  in  a  reasonable  way.    It  would  not  include  compen- 
sation for  the  board  of  the  horse  for  an  indefinite  time  for  the 
purpose  of  preserving  it  for  the  defendants.    She  was  under  no 
contract  or  obligation  to  keep  the  horse  for  their  benefit,  and,  if 
she  so  kept  it,  or  if  she  kept  it  for  her  own  benefit  because  she 
was  doubtful  how  the  dispute  ultimately  would  be  decided,  such 
keeping  was  not  a  direct  result  of  the  defendants '  breach  of  con- 
tract, and  she  cannot  charge  them  with  the  expense  of  it.    The 
plaintiff  in  this  case  had  not  the  full  right  of  an  involuntary  de- 
positary who  finds  property  whose  owner  is  unknown.  The  finder 
of  property  may  do  that  which  is  reasonably  necessary  for  its 
preservation  to  prevent  loss,  and  hold  the  owner  responsible  on 
the  ground  of  implied  agency.    Preston  v.  Neale,  12  Gray,  222. 
See  Field  v.  Roosa,  159  Mass.  128.    But,  if  the  owner  is  known, 
and  forbids  incurring  expense  at  his  charge,  no  contract  can  be 
implied  against  him.    In  the  other  view  of  the  case  the  law  may 
be  stated  thus :    On  the  refusal  of  the  defendants  to  receive  the 
horse,  the  relation  of  bailor  and  bailee  still  continued  (Andrews 
v.  Keith,  168  Mass.  558),  but  the  obligation  of  the  plaintiff  to 
set  the  use  of  the  horse  against  its  keeping  was  at  an  end.     It 
was  a  necessary  incident  of  the  relation  of  the  parties  that  she 
should  be  entitled  to  charge  the  defendants  for  the  expense 
which  formerly  she  had  been  bound  to  bear,  because  that  expense 
had  to  be  incurred  by  her  so  long  as  she  remained  the  defendants' 
bailee.     But  the   defendants'   liability  under  this   view  is  no 
greater  than  as  stated  under  the  other,  for  she  was  bound  to  do 
that  which  was  reasonable  under  the  circumstances,  to  keep  the 
liability  as  small  as  possible.    There  is  a  line  of  decisions  which 
establish  the  doctrine  that,  where  one    party   has    broken    an 


256  UAMAGKfe;    IN    ACTIONS    ON    CONTRACTS. 

executory  contract,  the  other,  who  is  in  the  right,  cannot  go  on 
mdetinitely  as  if  the  contract  still  were  unbroken,  but  is  bound 
to  ilo  what  he  reasonably  can  to  stop  the  damages  for  which  the 
tirst  party  will  be  liable  in  consequence  of  his  breach.  Collins  v. 
Delaporte,  115  Mass.  159,  162;  Clark  v.  Marsiglia,  1  Denio,  317; 
Danforth  v.  Walker,  37  Vt.  239 ;  Allen  v.  Jarvis,  20  Conn.  38 ; 
Cort  V.  Railway  Co.,  17  Q.  B.  127.  In  either  view  the  plaintiff 
was  bound  to  make  such  disposition  of  the  horse  as  would  termi- 
nate the  defendants'  liability  for  damages  or  for  expenses  as 
soon  as  she  could  seasonably  do  it.    Exceptions  sustained. 


(1)     Damages  Apainst  a  Common   Carrier  for  Breach  of  Contract  to 
Transport  Person alty. 

HORNE  V.  MIDLAND  RAILWAY. 
Common  Pleas,  1872.    L.  R.  7  C.  P.  583. 

WiLLES,  J.  This  case  raises  a  very  nice  question  upon  the 
measure  of  damages  to  which  a  common  carrier  is  liable  for  a 
breach  of  his  contract  to  carry  goods.  It  would  seem  that  the 
damages  which  he  is  to  pay  for  a  late  delivery  should  be  the 
amount  of  the  loss  which  in  the  ordinary  course  of  things  would 
result  from  his  neglect.  The  ordinary  consequence  of  the  non- 
delivery of  the  goods  here  on  the  3rd  of  February  would  be  that 
the  consignee  might  reject  them,  and  so  they  would  be  thrown 
upon  the  market  generally,  instead  of  going  to  the  particular 
purchaser;  and  the  measure  of  damages  would  ordinarily  be  in 
respect  of  the  trouble  to  which  the  consignor  would  be  put  in 
disposing  of  them  to  another  customer,  and  the  difference  be- 
tween the  value  of  the  goods  on  the  3rd  and  the  amount  real- 
ized by  a  reasonable  sale.  That  prima  facie  would  be  the  sum 
to  be  paid,  in  the  absence  of  some  notice  to  the  carrier  which 
would  render  him  liable  for  something  more  special.  These  con- 
sequences would  refer  to  the  value  of  the  goods  at  the  time 
of  their  delivery  to  the  carrier,  the  goods  being  consigned  to 
an  ordinary  market,  and  being  goods  in  daily  use  and  not  sub- 
ject to  much  fluctuation  in  price.  In  the  present  case,  taking 
2s.  9d.  per  pair  as  the  value  of  the  shoes,  the  ordinary  damages 
would  be  the  trouble  the  plaintiffs  were  put  to  in  procuring 
some  one  to  take  them  at  that  price,  plus  the  difference,  if  any, 
in  the  market  value  between  the  3rd  and  the  4th  of  February, 
I  find  nothing  in  the  case  to  show  that  there  was  any  diminution 


CONTRACTS    RELATING    TO    PERSONAL    PROPERTY.  257 

in  the  value  between  those  days.    The  plaintiffs '  claim,  therefore, 
in  that  respect  would  be  covered  by  the  20  1.  paid  into  Court. 

But  they  claim  to  be  entitled  to  267  1.  3s.  9d.  over  and  above 
that  sum,  on  the  ground  that  these  shoes  had  been  sold  by  them 
at  4s.  a  pair  to  a  consignee  who  required  them  for  a  contract  with 
a  French  house  for  supply  to  the  French  army,  which  price 
he  would  have  been  bound  to  pay  if  the  shoes  had  been  delivered 
on  the  3rd  of  February.    The  special  price  which  the  consignee 
had  agreed  to  pay  was  the  consequence  of  the  extraordinary 
demand  arising  from  the  wants  of  the  French  army;  and  the 
refusal  of  the  consignee  to  accept  the  goods  on  the  4th  was 
caused  by  the  cessation  of  the  demand  for  shoes  of  that  char- 
acter by  reason  of  the  war  having  come  to  an  end.    The  market- 
price,  therefore,  we  must  assume  to  have  been  2s.  9d.  a  pair  wheu 
the  shoes  were  delivered  to  the  carriers;  and  the  circumstance 
which  caused  the  difference  was  that  the  plaintiffs  had  had  the 
advantage  of  a  contract  at  4s.  a  pair  before  the  extraordinary 
demand  had  ceased.     Was  that,  then,  an  exceptional  contract? 
It  was  not,  I  take  it,  at  the  time  the  contract  was  entered  into ; 
but  it  was  at  the  time  the  shoes  w^ere  delivered  to  the    carriers. 
The  plaintiffs  sustained  a  loss  of  Is.  3d.  a  pair  on  the  4595  pairs 
of  shoes  which  they  failed  to  deliver  in  pursuance  of  their  con- 
tract.   It  was,  so  to  speak,  a  penalty  thrown  upon  them  by  reason 
of  the  breach  of  contract.     In  that  point  of  view,  the  contract 
was  an  exceptional  one  at  the  time  the  shoes  were  delivered  to 
the  carriers;  and  they  ought  to  have  been  informed  of  the  fact 
that  by  reason  of  special  circumstances  the  sellers  would,  if  the 
delivery  had  taken  place  in  time,  have  been  entitled  to  receive 
from  the  consignee  a  larger  price  for  the  shoes  than  they  would 
have  been  entitled  to  in  the  ordinary  course  of  trade.    It  must 
be  remembered  that  we  are  dealing  with  the  case  of  a  common 
carrier,  who  is  boimd  to  accept  the  goods.    It  would  be  hard  in- 
deed if  the  law  were  to  fix  him  with  the  further  liability  which 
is  here  sought  to  be  imposed  upon  him,  because  he  has  received  a 
notice  which  does  not  disclose  the  special  and  exceptional  con- 
sequences which  will  or  may  result  from  a  delayed  delivery.     I 
think  the  law  in  this  respect  has  gone  quite  as  far  as  good  sense 
warrants.     The  cases  as  to  the  measure  of  damages  for  a  tort 
do  not  apply  to  a  ease  of  contract.     That  was  suggested  in  a 
case  in  Bulstrode   (Everard  v.  Hopkins,  2  Bui.  332),  but  the 
notion  was  corrected  in  Hadley  v.  Baxendale.     The  damages 


258  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

are  to  be  limited  to  those  that  are  the  natural  and  ordinary  con- 
sequences which   may   be  supposed   to   have  been   in  the  con- 
templation of  the  parties  at  the  time  of  making  the  contract.    I 
go  further.     I  adhere  to  what  I  said  in  British  Columbia  Saw- 
Mill  Co.  V.  Nettleship,  Law  Rep.  3  C.  P.  499,  at  p.  509,  viz.  that 
"the  knowledge  must  be  brought  home  to  the  party  sought  to  be 
charged,  under  such  circumstances  that  he  must  know  that  the 
person  he  contracts  with  reasonably  believes  that  he  accepts  the 
contract  with  the  special  condition  attached  to  it."    Was  there 
any  notice  here  that  the  defendants  would  be  held  accountable 
for  the  particular  damages  now  claimed?    In  the  ordinary  course 
of  things,  the  value  of  the  shoes  was  2s.  9d.  a  pair  at  the  time 
they  were  delivered  to  the  defendants  to  be  carried.    There  was 
no  change  in  their  market  value  between  the  3rd  of  February 
and  the  4th ;  and  no  notice  to  the  carriers  that  the  consignees  had 
contracted  to  pay  for  them  the  exceptional  price  of  4s.  a  pair. 
The  defendants  had  no  notice  of  the  penalty,  so  to  speak,  which 
a  delay  in  the  delivery  would  impose  upon  the  plaintiffs.     It 
would,  as  it  seems  to  me,  be  an  extraordinary  result  to  arrive  at, 
to  hold  that  a  mere  notice  to  the  carriers  that  the  shoes  would 
be  thrown  upon  the  hands  of  the  consignors  if  they  did  not  reach 
the  consignees  by  the  3rd  of  February,  should  fix  them  with  so 
large  a  claim,  by  reason  of  facts  which  were  existing  in  the  minds 
of  the  consignors,  but  were  not  communicated  to  the  carriers  at 
the  time. 

For  these  reasons  I  come  to  the  conclusion  that  enough  has 
been  paid  into  court  to  cover  all  the  damages  which  the  plaintiffs 
are  entitled  to  recover,  and  that  there  must  be  judgment  for  the 
defendants. 

Keating,  J.,  concurs.  Judgment  for  the  defendants. 


2)     Sales  of  Personal  Peoperty.  ' 
(1)     Breach  of  Vendor. 

SHIELDS  V.  PETTIE. 

New  York,  1S50.       4  N.  Y.  122. 


The  action  was  assumpsit  to  recover  a  quantity  of  pig  iron. 
The  contract  between  the  parties  was  concluded  in  these  words : 
"New   York,   July   19,   1847.     Sold   for   Messrs.    George   W. 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  259 

Shields  &  Co.,  to  Messrs.  Pettee  &  Mann,  one  hundred  and  fifty- 
tons  Gartsherrie  pig  iron,  No.  1,  at  $29  per  ton,  one-half  at  six 
months,  one-half  cash,  less  four  per  cent.,  on  board  Siddons. 

"Thomas  Ingham,  Broker." 

On  the  arrival  of  the  *  *  Siddons ' '  the  defendants  received  sixty 
or  seventy  tons  of  the  iron,  but  on  ascertaining  its  inferior  qual- 
ity, declined  to  accept  and  pay  for  it,  or  the  residue,  as  of  the 
quality  required  by  the  contract.  The  plaintiffs  offered  to  de- 
liver the  residue,  which  was  declined,  and  then  demanded  pay- 
ment for  the  portion  delivered  at  the  contract  price,  which  was 
also  refused,  as  was  a  demand  for  the  return  of  the  iron  delivered. 
The  price  of  No.  1  iron  had  by  this  time  advanced  about  $3.50 
per  ton  above  the  contract  price.  The  defendants  had  parted 
with  a  portion  of  the  iron  before  its  return  was  demanded. 

The  jury  were  instructed  that  under  the  circumstances  the 
defendants  were  liable  by  an  implied  contract  to  pay  for  the  iron 
received  at  its  then  market  value.  The  plaintiffs  had  judgment 
on  a  verdict  for  $2,197.39.     The  defendants  appealed. 

HuRLBUT,  J.  In  my  judgment  the  contract  was  not  a  sale  but 
an  agreement  to  sell,  which  was  not  executed,  and  which  could 
only  be  required  to  be  executed  upon  the  arrival  of  the  ship  with 
the  iron  on  board.  The  arrival  of  the  vessel  without  the  iron 
would  have  put  an  end  to  the  contract,  which  was  conditional  as 
a  sale,  to  arrive.  The  vessel  was  at  sea  at  the  time,  this  was 
known  to  both  parties,  and  neither  could  be  certain,  either  of 
her  arrival  or  of  her  bringing  the  iron.  If  a  part  only  had 
arrived,  the  plaintiffs  would  not  have  been  bound  to  deliver  nor 
the  defendants  to  accept  it.  There  was  no  warranty,  express  or 
implied,  either  that  any  iron  should  arrive,  or  that  arriving,  it 
should  be  of  a  particular  quality.  One  hundred  and  fifty  tons 
of  Gartsherrie  pig  iron  of  the  quality  denominated  No.  1  was 
expected  to  arrive  by  the  "Siddons,"  and  the  contract  was  to 
the  effect,  that  if  that  quantity  and  quality  of  iron  did  so  arrive, 
one  party  should  sell  and  the  other  should  receive  it  at  a  certain 
price  per  ton.  The  iron  called  for  by  the  contract  did  not  arrive, 
but  iron  of  a  different  quality,  and  I  think  the  contract  was  at 
an  end.  (Boyd  v.  Siffkin,  2  Camp.  N.  P.  326 ;  Alewyn  v.  Pry  or, 
1  Ryan  &  Moody,  406 ;  Lovatt  v.  Hamilton,  5  Mees.  &  Wels.  639 ; 
Johnson  v.  Macdonald,  9  id.  600 ;  Russell  v.  Nicoll,  3  Wend.  112.) 

The  jury  were  instructed  that,  under  the  circumstances  of  the 
case,  the  law  implied  a  contract  on  the  part  of  the  defendants 


260  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

to  pay  for  the  iron  which  they  received  at  the  then  value  of  the 
same  in  the  market,  and  they  found  accordingly ;  which,  in  effect 
compelled  the  defendants  to  pay  for  an  inferior  article  a  greater 
price  than  that  stipulated  for  in  the  contract.  This  arose  from 
the  circumstance  of  a  rise  in  the  market,  intermediate  the  contract 
and  the  time  of  delivery.  But  this  ought  not  to  affect  the  rule 
of  damages  which  cannot  bend  to  an  accident  of  this  nature,  but 
must  remain  the  same  in  a  case  like  the  present,  whether  the  com- 
modity rise  or  fall,  or  remain  stationary  in  the  market.  Where, 
upon  a  sale  of  goods,  there  is  no  agreement  as  to  the  price,  the 
law  implies  a  contract  on  the  part  of  the  buyer  to  pay  for  them 
at  the  market  value.  The  present  case  cannot  be  excepted  from 
the  operation  of  this  rule.  There  was  no  error  in  the  charge  of 
the  learned  judge,  provided  the  law  implied  a  promise  on  the 
part  of  the  defendants  to  pay  any  thing  whatever  for  the  iron 
which  they  received.  This  they  had  taken  in  good  faith,  suppos- 
ing that  it  answered  the  contract,  and  intending  to  pay  for  it 
accordingly ;  but  finding  it  to  be  of  an  inferior  quality,  they  de- 
clined to  pay  the  contract  price,  and  upon  a  demand  for  the  iron 
were  not  in  a  condition  to  restore  it,  as  they  had  parted  with  a 
portion  of  it.  They,  however,  had  received  the  iron  rightfully, 
in  the  character  of  vendees,  and  up  to  the  time  of  the  demand  by 
the  plaintiffs,  the  case  exhibits  nothing  in  the  nature  of  a  tcrt, 
but  savors  altogether  of  contract.  After  the  demand  and  refusal, 
the  case  was  so  far  modified  as  to  assume,  technically  at  least,  the 
complexion  of  a  tort,  so  that  trover  might  have  been  maintained 
by  the  plaintiffs.  But  although  they  might  have  done  so,  were 
they  bound  to  bring  their  action  in  that  form,  or  were  they  at  lib- 
erty to  disregard  the  tort  and  to  treat  the  defendants  as  still  re- 
taining their  original  characters  of  purchasers  of  the  iron  and  to 
charge  them  accordingly?  I  perceive  no  reason  why  they  may 
not  be  permitted  to  do  so.  The  goods  were  neither  wrongfully 
taken,  nor  do  the  defendants  claim  title  to  them.  The  case  rested 
originally  in  contract,  and  the  only  difference  between  the  parties 
related  to  the  price  of  the  article  delivered.  If  the  plaintiffs  had 
brought  trover,  the  rule  of  damages  would  not  have  been  more 
favorable  to  the  defendants  than  the  one  laid  down  at  the  trial, 
and  I  am  unable  to  perceive  in  what  respect  they  can  be  injured 
by  the  present  form  of  action.  In  general  it  would  be  the  most 
favorable  to  the  defendant.  In  Young  v.  Marshall  (8  Bing.  43), 
Tindal,  Ch.  J.,  declared  that  no  party  was  bovmd  to  sue  in  tort, 


CONTRACTS    RELATING   TO   PERSONAL   PROPERTY.  261 

when  by  converting  the  action  into  one  of  contract  he  does  not 
prejudice  the  defendant.  It  is  not  necessary  to  go  this  length, 
nor  as  far  as  the  court  went  in  Hill  v.  Davis  (3  N.  H.  384),  for 
the  purpose  of  determining  the  question  before  us;  nor  is  the 
point  presented  in  the  last  case  of  much  importance,  since  the 
distinctions  which  obtained  at  common  law  in  the  forms  of  action 
have  been  abrogated  in  this  state.  I,  therefore,  abstain  from  ex- 
pressing any  opinion  upon  it.  It  is  enough  for  our  present 
purpose,  that,  in  the  case  before  us,  the  cause  of  action  arose  out 
of  an  imperfect  sale  and  delivery  of  goods,  and  not  out  of  a 
wrongful  taking  of  them  by  the  defendants;  that  the  tortious 
feature  in  the  case  is  scarcely  one  of  substance,  but  is  rather  of 
a  technical  character;  that  in  effect  the  parties  must  be  deemed 
to  have  agreed  as  to  every  thing  except  the  price  of  the  goods; 
and  that  this  being  so,  the  plaintiffs  were  at  liberty  to  disregard 
whatever  might  savor  of  tort,  and  require  the  defendants  to  re- 
spond in  their  substantial  characters  as  purchasers  of  the  iron 
for  what  it  was  worth  in  the  market. 

The  judgment  of  the  superior  court  ought  to  be  affirmed. 

Judgment  affirmed. 


MESSMORE  V.  THE  NEW  YORK  SHOT  AND  LEAD  CO. 

New  York,  1869.       40  N.  Y.  422. 

The  action  was  brought  to  recover  damages  for  breach  of  the 
following  contract,  in  writing: 

"New  York,  June  8,  1861. 
' '  Mr.  Daniel  Messmore,  No.  23  William  Street : 

"Dear  Sir— We  will  fill  your  order  for  100,000  lbs.  of  Minie 
bullets — 58  calibre,  U.  S.  Rifle  Musket— and  deliver  them  on 
board  such  lines  as  you  may  direct,  as  rapidly  as  possible,  on 
the  following  terms: 

"The  price  to  be  7c.  per  lb.     If  packed  in  kegs  the  charge  to 
be  12c.  per  100  lbs.,  and  cartage  50c.  per  ton.     The  terms  of  pay- 
ment to  be  prompt  cash  for  each  lot  as  delivered,  to  be  paid  on 
presentation  of  invoice  and  bill  of  lading. 
' '  Respectfully  yours, 

"N.  Y.  Shot  and  Lead  Co. 

"By  J.  E.  Granniss."     . 

At  the  time  the  plaintiff  gave  his  order  for  these  bullets  he  was 

under  contract  to  furnish  the  state  of  Ohio  with  the  same  num- 


262  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

ber  and  quality  oi'  bullets  at  seven  and  three-fourths  cents  per 
poiuid  and  the  expenses  of  transportation  at  Columbus,  Ohio, 
and  the  defendants  were  so  informed.  Twenty  thousand  lbs. 
were  sent  to  the  quartermaster-general  of  Ohio,  but  were  rejected 
as  not  conforming  to  the  contraet.  They  were  found  to  be  of  all 
calibres  and  useless.  The  plaintiff  then  offered  to  return  the 
bullets  to  the  defendants,  but  they  refused  to  receive  them. 
Plaintiff  then  sold  them  at  Columbus,  Ohio,  without  notice  to 
defendants,  for  the  best  price  he  could  obtain,  viz.,  four  and  a 
half  cents  per  pound.  At  the  trial  is  was  proved,  that  bullets 
of  the  kind  contracted  for,  were  worth  at  that  time,  at  Columbus, 
nine  cents  per  pound. 

The  defendant  claimed  that  the  damages,  if  any,  could  only  be 
the  difference  between  the  contract  price  and  market  price  at 
New  York. 

Judgment  for  plaintiff  was  affirmed  by  the  General  Term  of 
the  New  York  Common  Pleas. 

Mason,  J.  It  is  not  necessary  to  decide,  in  this  ease,  whether 
the  plaintiff  was  entitled,  upon  the  evidence,  to  recover  the  value 
of  these  bullets  upon  the  market  price  in  Ohio,  as  shown  by  the 
evidence,  or  whether  the  court  erred  in  admitting  the  evidence 
to  show  the  value  of  such  bullets  there,  as  the  verdict  of  the  jury 
shows  that  no  such  rule  of  damages  was  adopted  by  the  jury  in 
giving  this  verdict.  They  simply  allowed  to  the  plaintiff  the 
profits  which  he  would  have  made  had  the  contract  been  fulfilled, 
to  wit:  Three-fourths  of  a  cent  per  pound,  and  the  express 
charges  and  storage  on  what  was  sent.  The  plaintiff  submitted 
two  statements:  One  made  upon  the  basis  that  he  was  entitled 
to  recover  just  the  difference  between  the  purchase  price  and  the 
price  at  which  he  had  contracted  for  their  resale  to  the  State  of 
Ohio,  with  the  express  charges  which  he  had  paid  on  those  sent, 
which  were  refused  because  of  their  inferior  quality;  the  other 
was  the  difference  between  the  seven  cents  per  pound  and  the 
nine  cents,  which  the  evidence  showed  them  worth  in  Ohio.  These 
statements  were  all  carried  out  in  items  and  figures,  the  first 
statement  making  the  plaintiff's  claim  for  damages  $1,128.50, 
and  the  second  $1,949.22,  and  the  verdict  of  the  jury  was 
$1,128.50;  showing  conclusively  that  they  adopted  the  first  state- 
ment without  computation,  and  gave  the  plaintiff,  as  damages, 
no  more  than  the  profits  he  would  have  made  had  the  contract 
been  fulfilled,  and  what  he  paid  out  for  express  charges  on  those 


CONTRACTS    RELATING    TO    PERSONAL    PROPERTY.  263 

sent  which  were  refused.  The  defendants  claim  and  insist,  how- 
ever, that  this  collateral  contract  of  the  plaintiff  with  the  State 
of  Ohio  was  improperly  allowed  in  evidence  and  could  not  be 
allowed  as  the  basis  of  damages  between  these  parties;  that  in 
short  the  plaintiff  can  only  recover  the  difference  between  the 
contract  price  and  the  market  value  in  the  city  of  New  York 
where  the  contract  of  sale  was  made,  and  where  the  property  was 
to  be  delivered  under  the  contract. 

The  general  rule  of  damages,  ordinarily,  is  the  difference  be- 
tween the  contract  price  and  the  market  value  of  the  article  at 
the  time  and  place  of  delivery  fixed  by  the  contract.  This  is  not 
the  invariable  rule  in  all  cases.  The  general  rule  is,  that  the 
party  injured  by  a  breach  of  a  contract,  is  entitled  to  recover  all 
his  damages,  including  gains  prevented  as  well  as  losses  sus- 
tained, provided  they  are  certain,  and  such  as  might  naturally 
be  expected  to  follow  the  breach.  In  commodities  commonly 
purchasable  in  the  market,  it  is  safe  to  say  that  the  purchaser 
is  made  whole,  when  he  is  allowed  to  recover  the  difference  be- 
tween the  contract  price  and  the  value  of  the  article  in  the  market 
at  the  time  and  place  of  delivery ;  because  he  can  supply  himself 
with  this  article  by  going  into  the  market  and  making  his  pur- 
chase at  such  price,  and  these  are  all  the  damages  he  is  ordinarily 
entitled  to  recover,  for  nothing  beyond  this  is  within  the  con- 
templation of  the  parties  when  they  entered  into  the  contract. 

This  rule,  however,  is  changed  when  the  vendor  knows  that 
the  purchaser  has  an  existing  contract  for  a  re-sale  at  an  ad- 
vanced price,  and  that  the  purchase  is  made  to  fulfill  such  con- 
tract, and  the  vendor  agrees  to  supply  the  article  to  enable  him 
to  fulfill  the  same,  because  those  profits  which  would  accrue 
to  the  purchaser  upon  fulfilling  the  contract  of  re-sale,  may 
justly  be  said  to  have  entered  into  the  contemplation  of  the 
parties  in  making  the  contract.  (Griffin  v.  Colver,  16  N.  Y.  R. 
493.)  This  rule  is  based  upon  reason  and  good  sense,  and  is 
in  strict  accordance  with  the  plainest  principles  of  justice.  It 
affirms  nothing  more  than  that  where  a  party  sustains  a  loss  by 
reason  of  a  breach  of  a  contract,  he  shall,  so  far  as  money  can 
do  it,  be  placed  in  the  same  situation  with  respect  to  damages,  as 
if  the  contract  had  been  performed. 

It  was  clearly  competent  for  the  plaintiff  to  show  that  the  de- 
fendants were  informed  of  the  object  of  the  plaintiff  in  making 
this  contract  of  purchase  of  them,  and  that  it  was  to  fulfill  an 


264  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

existing  contract  of  his  own  with  the  State  of  Ohio  at  a  price 
of  three-fourths  of  one  cent  per  pound,  above  the  price  he  was 
to  pay  them,  and  that  they  were  to  manufacture  these  bullets  to 
enable  him  to  fultill  such  contract,  because  it  showed  that  these 
profits  to  this  plaintiff  were  in  the  contemplation  of  the  parties 
in  entering  into  this  contract,  and  as  the  evidence  showed  such 
to  be  the  fact,  these  profits  that  would  have  accrued  to  the  plain- 
tiff had  the  contract  been  performed  by  the  defendants  are  in 
no  sense  speculative  or  uncertain  profits.  The  result  of  a  non- 
performance is  a  practical  and  certain  loss  to  the  plaintiff  to 
that  extent,  unless  the  plaintiff  could  have  supplied  himself  by 
going  into  the  market,  and  making  a  purchase  to  fulfill  his  con- 
tract, which,  at  that  particular  time,  it  is  pretty  evident,  he  could 
not  do,  as  lead  went  up,  after  the  making  of  this  contract,  rapidly, 
and  bullets  were  sold  in  Ohio  for  nine  cents  in  a  month  after 
the  making  of  this  contract;  and  the  plaintiff  testified  that  he 
was  offered  nine  cents  for  a  good  Minie  bullet  by  two  or  three  dif- 
ferent persons,  and  that  Woods  offered  him  that  for  100,000  lbs., 
if  delivered  within  ten  days.  This  was  in  July  and  August,  only 
a  month  or  two  after  this  contract  was  entered  into,  and  the 
demand  became  so  great  that  lead  went  up  five  to  six  cents  a 
pound.  The  evidence  fails  to  show  that  these  bullets  were 
sacrificed  in  the  sale  of  them  by  the  plaintiff ;  on  the  contrary, 
the  evidence  is  they  were  sold  for  all  they  were  worth.  (See  case, 
fols.  82  and  46.)  This  case  does  not  fall  within  the  principle  of 
Reed  v.  Randall,  29  N.  Y.  R.  358,  as  the  plaintiff  never  had  an 
opportunity  to  examine  the  bullets  and  no  inspection  was  ever 
made  of  them  by  the  plaintiff,  or  any  one  in  his  behalf.  They 
were  put  up  in  bags  and  kegs  by  the  defendants  and  actually 
shipped  by  them  in  their  own  name,  and  the  contract  itself  re- 
quired them  to  deliver  them  to  such  lines  of  transportation  as 
the  plaintiff  should  direct,  and  evidently  the  plaintiff  had  no  op- 
portunity to  examine  them  and  therefore  cannot  be  held  to  have 
made  such  an  acceptance  as  to  deprive  him  of  his  action. 

The  plaintiff  had  the  right  to  sell  these  bullets  at  the  best  price 
he  could  obtain  for  them,  after  his  offer  to  return  them,  and  the 
defendants'  refusal  to  receive  them;  and  the  law  did  not  require 
him  to  give  notice  to  the  defendants  of  the  time  and  place  of  sale. 

rPollen  &  Colgate  v.  LeRoy  &  Smith,  30  N.  Y.  R.  549.)     This  is 
not  very  material,  however,  as  the  evidence  is  they  were  sold  for 

all  they  were  worth. 


CONTRACTS    REL.VTING    TO    PERSONAL    PROPERTY.  265 

There  was  no  error  committed  in  allowing  the  plaintiff  to  re- 
cover what  he  paid  out  for  transportation,  on  these  bullets.  By 
his  contract  with  the  State  of  Ohio,  the  State  w^as  to  pay  these 
expenses  of  transportation,  and  as  they  refused  to  receive  them 
because  of  their  defects,  the  plaintiff  has  sustained  this  loss,  and 
the  defendants  cannot  complain  of  this,  w^hen  they  accepted  his 
order  and  actually  shipped  them  by  express  themselves. 

The  judgment  should  be  affirmed.  All  concur. 


CORY  V.  THAMES  IRONWORKS  &  SHIPBUILDING 
COMPANY,  LIMITED. 

Queen's  Bench,  1868.    L.  R.  3  Q.  B.  181. 

This  was  an  issue  directed  by  the  Court  of  Chancery  under 
8  &  9  Vict.  c.  109,  to  ascertain  the  amount  of  damages  to  which 
the  plaintiffs  were  entitled,  inter  alia,  by  reason  of  the  delay  by 
the  defendants  in  the  delivery  of  the  hull  of  a  floating-boom  der- 
rick, under  a  contract  of  sale. 

At  the  trial  before  Shee,  J.,  at  the  sittings  in  London,  after 
Hilary  Term,  1864,  a  verdict  was  taken  for  the  plaintiffs,  sub- 
ject to  a  case  to  be  stated  by  an  arbitrator. 

The  plaintiffs  are  coal  merchants  and  shipowners,  having  a 
very  large  import  trade  in  coal  from  Newcastle  and  other  places 
into  the  port  of  London.  The  defendants  are  iron  manufacturers 
and  shipbuilders  in  London. 

The  plaintiffs  had  introduced,  at  the  docks  where  they  dis- 
charged the  cargoes  of  coal  from  their  ships,  a  new  and  ex- 
peditious mode  of  unloading  the  coals  by  means  of  iron  buckets, 
which  were  worked  by  hydraulic  pressure  over  powerful  cranes, 
and  the  plaintiffs'  trade  having  considerably  increased,  they  were 
desirous  of  improving  the  accommodation  offered  in  the  dis- 
charge of  their  vessels  by  the  above  mode ;  this  the  defendants 
were  not  aware  of. 

The  defendants  agreed  to  sell  the  plaintiffs  for  3500  1.  a  float- 
ing-boom derrick,  and  to  deliver  it  before  the  1st  of  January, 
1862.  The  plaintiffs  purchased  the  derrick  for  the  purposes  of 
their  business,  in  order  to  erect  and  place  in  it,  as  they  in  fact 
did.  large  hydraulic  cranes  and  machinery,  such  as  they  had 
previously  used  at  the  docks,  and  by  means  of  these  cranes  to 
transship  their  coals  from  colliers  into  barges  without  the  neces- 
sity for  any  intermediate  landing,  the  derrick,  for  this  purpose. 


266  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

being  moored  in  the  river  Thames,  and  the  plaintiffs  paying 
the  conservators  of  the  river  a  hirge  rent  for  allowing  it  to 
remain  there. 

The  derrick  was  the  first  vessel  of  the  kind  that  had  ever  been 
built  in  this  country,  and  the  purpose  to  which  the  plaintiffs 
sought  to  apply  it  was  entirely  novel  and  exceptional.  No  hull 
or  other  vessel  had  ever  been  fitted  either  by  coal  merchants 
or  others  in  a  similar  way  or  for  a  similar  purpose;  and  the 
defendants  at  the  date  of  the  agreement  had  notice  that  the 
plaintiffs  purchased  the  derrick  for  the  purpose  of  their  busi- 
ness, considering  that  it  was  intended  to  be  used  as  a  coal  store ; 
but  they  had  no  notice  or  knowledge  of  the  special  object  for 
which  it  was  puchased,  and  to  which  it  was  actually  applied. 

At  the  date  of  the  agreement  the  defendants  believed  that  the 
plaintiffs  were  purchasing  the  derrick  for  the  purpose  of  using 
her  in  the  way  of  their  business  as  a  coal  store;  but  the  plain- 
tiffs had  not  at  that  time  any  intention  of  applying  the  derrick 
to  any  other  purpose  than  the  special  purpose  to  which  she  was 
in  fact  afterwards  applied. 

If  the  plaintiffs  had  been  prevented  from  applying  the  der- 
rick to  the  special  purpose  for  which  she  was  purchased,  and  to 
which  she  was  applied,  they  would  have  endeavored  to  sell  her  to 
persons  in  the  hulk  trade  as  a  hulk  for  storing  coals,  and  had 
they  been  imable  to  sell  her,  they  could  and  would  have  em- 
ployed her  in  that  trade  and  in  that  way  themselves;  that  was 
the  most  obvious  use  to  which  such  a  vessel  was  capable  of  being 
applied  by  persons  in  the  plaintiffs'  business;  but  the  hulk  trade 
is  a  distinct  branch  of  the  coal  trade,  and  neither  formed  nor 
forms  any  part  of  the  business  carried  on  by  the  plaintiffs ;  and 
the  derrick  being  an  entirely  novel  and  exceptional  vessel  and 
the  first  of  the  kind  built,  no  vessel  of  the  sort  had  ever  been 
applied  to  such  a  purpose.  The  derrick  was,  however,  capable 
of  being  applied  to  and  profitably  employed  for  that  purpose, 
and  had  ^^he  been  purchased  for  that  purpose  her  non-delivery 
at  the  time  fixed  by  the  agreement  would  have  occasioned  loss 
and  damage  to  the  plaintiffs  to  the  amount  of  420  1. 

The  defendants  did  not  deliver  the  derrick  to  the  plaintiffs 
until  the  Ist  of  July,  1862.  If  the  defendants  had  delivered  the 
hull  to  the  plaintiffs  in  proper  time,  the  plaintiffs  would  have 
realized  large  profits  by  the  use  of  it  in  the  aforesaid  manner, 
and  they  were  put  to  great  inconvenience  and  sustained  great 


CONTRACTS    RELATING    TO   PERSONAL    PROPERTY.  267 

loss  owing  to  their  not  having  possession  of  the  hull  to  meet  the 
great  increase  in  their  trade. 

The  plaintiffs  also  lost  8  1.  15s.  for  interest  upon  the  portion 
of  the  purchase-money  of  the  hull  paid  by  them  to  the  defend- 
ants before  delivery. 

The  question  for  the  opiuion  of  the  Court  was,  whether  the 
plaintiffs  were  entitled  to  recover  against  the  defendants  the 
whole  or  any,  and  which  of  the  above  heads  of  damage. 

The  Court  then  called  upon 

J.  D.  Coleridge,  Q.  C.  (Garth,  Q.  C,  and  Philbrick  with  him) 
for  the  defendants.  No  doubt  the  plaintiffs  are  entitled  to  the 
interest ;  but  they  are  not  entitled  to  the  420  1.  This  sum  is  the 
damages  resulting  from  a  special  purpose,  within  the  principle 
of  Hadley  v.  Baxendale.  The  rule  laid  down  in  Hadley  v.  Baxen- 
dale  is  that  the  plaintiff  can  only  recover  such  damages  as  are 
the  natural  result  of  the  breach  of  contract  in  ordinary  circum- 
stances, or, — which  would  appear  to  be  another  mode  of  ex- 
pressing the  same  thing, — what  were  in  the  contemplation  of 
both  parties  at  the  time  of  the  contract. 

[Blackburn,  J.  The  damages  are  to  be  what  would  be  the 
natural  consequences  of  a  breach  under  circumstances  which 
both  parties  were  aware  of.] 

[CoCKBURN,  C.  J.  No  doubt,  in  order  to  recover  damage  aris- 
ing from  a  special  purpose  the  buyer  must  have  communicated 
the  special  purpose  to  the  seller;  but  there  is  one  thing  which 
must  always  be  in  the  knowledge  of  both  parties,  which  is,  that 
the  thing  is  bought  for  the  purpose  of  being  in  some  way  or 
other    profitably  applied.] 

But  it  [the  use  to  which  the  defendants  supposed  the  hull 
was  intended  to  be  applied]  is  a  use  totally  distinct  from 
that  to  which  the  plaintiffs  applied  and  intended  to  apply  it. 

[CocKBURN,  C.  J.  The  two  parties  certainly  had  not  in  their 
oommon  contemplation  the  application  of  this  vessel  to  any  one 
specific  purpose.  The  plaintiffs  intended  to  apply  it  in  their 
trade,  but  to  the  special  purpose  of  transhipping  coals ;  the  de- 
fendants believed  that  the  plaintiffs  would  apply  it  to  the  pur- 
pose of  their  trade,  but  as  a  coal  store.  I  cannot,  however,  assent 
to  the  proposition  that,  because  the  seller  does  not  know  the  pur- 
pose to  which  the  buyer  intends  to  apply  the  thing  bought,  but 
believes  that  the  buyer  is  going  to  apply  it  to  some  other  and 
different  purpose,  if  the  buyer  sustains  damage  from  the  non- 


26S  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

deliveiy  of  the  thing,  he  is  to  be  shut  out  from  recovering  any 
daiuagos  in  respect  of  the  loss  he  may  have  sustained.  I  take 
the  true  proposition  to  be  this.  If  the  special  purpose  from 
which  the  larger  profit  may  be  obtained  is  known  to  the  seller, 
he  may  be  made  responsible  to  the  full  extent.  But  if  the  two 
parties  are  not  ad  idem  quoad  the  use  to  which  the  article  is  to 
be  applied,  then  you  can  only  take  as  the  measure  of  damages  the 
prolit  which  would  result  from  the  ordinary  use  of  the  article 
for  the  purpose  for  which  the  seller  supposed  it  was  bought. 
And  the  arbitrator,  as  I  imderstand.it,  finds  that  the  hull  was 
capable  of  being  applied  profitably  as  a  coal  store,  if  it  had  not 
been  applied  by  the  plaintiffs  to  their  special  purpose.] 

But  no  vessel  of  the  sort  had  ever  been  applied  to  such  a  pur- 
pose as  a  coal  store.  And  this  kind  of  damage  is  a  damage  which 
the  plaintiffs  never  suffered,  and  which  they  never  contemplated 
suffering. 

[]\Iellor,  J.  It  was  the  most  obvious  purpose  to  which  such 
a  vessel  could  be  applied  in  the  plaintiff's'  trade. 

CocKBURN,  C.  J.  And  the  purpose  to  which  it  may  be  fairly 
supposed,  and  as  in  fact  the  defendants  did  suppose,  that  the 
plaintiffs  would  have  applied  it,  had  they  been  prevented  by  the 
failure  of  the  machinery,  or  any  other  cause,  from  being  able  to 
apply  it  to  their  special  purpose.  And  so  far  as  the  defendants, 
the  sellers,  expected  that  the  plaintiffs,  the  buyers,  would  be 
losers  by  their  non-delivery  of  the  vessel  according  to  contract, 
so  far  it  is  just  and  right  that  the  defendants  should  be  re- 
sponsible in  damages.] 

That,  no  doubt,  would  be  a  just  rule ;  but  it  is  not  the  rule 
laid  down  in  Iladley  v.  Baxendale. 

[Blackburn,  J.  That  argument  seems  to  assume  that  the 
principle  laid  down  in  Hadley  v.  Baxendale  is  that  the  damages 
can  only  be  what  both  parties  contemplated,  at  the  time  of  mak- 
ing the  contract,  would  be  the  consequence  of  the  breach  of  it ; 
but  that  is  not  the  principle  laid  down  in  Hadley  v.  Baxendale. 
The  court  saj'':  "We  think  the  proper  rule  in  such  a  case  as 
the  present  is  this:  Where  two  parties  have  made  a  contract 
which  one  of  them  has  broken,  the  damages  which  the  other  party 
ought  to  receive  in  respect  of  such  breach  of  contract  should  be 
such  as  may  fairly  and  reasonably  be  considered,  either  arising 
naturally,  i.  e.  according  *to  the  usual  course  of  things,  from  such 
breach  of  contract  itself," — that  is  one  alternative,— "or  such  as 


CONTRACTS    RELATING    TO   PERSONAL    PROPERTY.  269 

may  reasonably  be  supposed  to  have  been  in  the  contemplation 
of  both  parties,  at  the  time  they  made  the  contract,  as  the  prob- 
able result  of  the  breach  of  it."  Now,  in  the  present  case  the 
breach  of  contract  was  the  non-delivery  at  the  agreed  time  of  a 
hull  capable  of  being  used  as  a  hulk  for  storing  coals,  and  the 
consequences  that  would  naturally  arise  from  such  non-deliv- 
ery^ of  it  would  be  that  the  purchaser  would  not  be  able  to  earn 
money  by  its  use,  and  this  loss  of  profit  during  the  delay  would 
be  the  measure  of  the  damages  caused  by  the  non-delivery.] 
*     *     * 

CocKBURN,  C.  J.  I  think  the  construction  which  Mr.  Cole- 
ridge seeks  to  put  upon  the  case  of  Hadley  v.  Baxendale  is  not 
the  correct  construction  as  applicable  to  such  a  case  as  this. 
If  that  were  the  correct  construction,  it  would  be  attended  with 
most  mischievous  consequences,  because  this  would  follow,  that 
whenever  the  seller  was  not  made  aware  of  the  particular  and 
special  purpose  to  which  the  buyer  intended  to  apply  the  thing 
bought,  but  thought  it  was  for  some  other  purpose,  he  would  be 
relieved  entirely  from  making  any  compensation  to  the  buyer, 
in  case  the  thing  was  not  delivered  in  time,  and  so  loss  was  sus- 
tained by  the  buyer;  and  it  would  be  entirely  in  the  power  of 
the  seller  to  break  his  contract  with  impunity.  That  would  nec- 
essarily follow,  if  Mr.  Coleridge's  interpretation  of  Hadley  v. 
Baxendale  was  the  true  interpretation.  My  brother  Blackburn 
has  pointed  out  that  that  is  not  the  true  construction  of  the  lan- 
guage which  the  court  used  in  delivering  judgment  in  that  case. 
As  I  have  said  in  the  course  of  the  argument,  the  true  principle  is 
this,  that  although  the  buyer  may  have  sustained  a  loss  from 
the  non-delivery  of  an  article  which  he  intended  to  apply  to  a 
special  purpose,  and  which,  if  applied  to  that  special  purpose, 
would  have  been  productive  of  a  larger  amount  of  profit,  the  seller 
cannot  be  called  upon  to  make  good  that  loss  if  it  was  not  within 
the  scope  of  his  contemplation  that  the  thing  would  be  ap- 
plied to  the  purpose  from  which  such  larger  profit  might  result ; 
and  although,  in  point  of  fact,  the  buyer  does  sustain  damage  to 
that  extent,  it  would  not  be  reasonable  or  just  that  the  seller 
should  be  called  upon  to  pay  it  to  that  extent ;  but  to  the  extent  to 
which  the  seller  contemplated  that,  in  the  event  of  his  not  fulfill- 
ing his  contract  by  the  delivery  of  the  article,  the  profit  which 
would  be  realized  if  the  article  had  been  delivered  would  be  lost 
to  the  other  party,  to  that  extent  he  ought  to  pay.    The  buyer  has 


270  DAMAGES   IN   ACTIONS  ON   CONTRACTS. 

lost  the  larger  amount,  and  there  can  be  no  hardship  or  injustice 
in  making  the  seller  liable  to  compensate  him  in  damages  so  far 
as  the  seller  understood  and  believed  that  the  article  would  be  ap- 
plied to  the  ordinary  purposes  to  which  it  was  capable  of  being 
applied.  I  think,  therefore,  that  ought  to  be  the  measure  of 
damages,  and  I  do  not  see  that  there  is  anything  in  Hadley  v. 
Baxendale  which  at  all  conflicts  with  this. 

BkcVCkburn,  J.  I  am  entirely  of  the  same  opinion.  I  think 
it  all  comes  roimd  to  this:  The  measure  of  damages  when  a 
party  has  not  fulfilled  his  contract  is  what  might  be  reasonably 
expected  in  the  ordinary  course  of  things  to  flow  from  the  non- 
fulfillment of  the  contract,  not  more  than  that,  but  what  might 
be  reasonably  expected  to  flow  from  the  non-fulfillment  of  the 
contract  in  the  ordinary  state  of  things,  and  to  be  the  natural 
consequences  of  it.  The  reason  why  the  damages  are  confined  to 
that  is,  I  think,  pretty  obvious,  viz.,  that  if  the  damage  were  ex- 
ceptional and  unnatural  damage,  to  be  made  liable  for  that 
would  be  hard  upon  the  seller,  because  if  he  had  known  what  the 
consequence  would  be  he  would  probably  have  stipulated  for 
more  time,  or,  at  all  events,  have  used  greater  exertions  if  he 
knew  that  that  extreme  mischief  would  follow  from  the  non-ful- 
fillment of  his  contract.  On  the  other  hand,  if  the  party  has 
knowledge  of  circumstances  which  would  make  the  damages  more 
extensive  than  they  would  be  in  an  ordinary  case,  he  would  be 
liable  to  the  special  consequences,  because  he  has  knowledge  of 
the  circumstances  which  would  make  the  natural  consequences 
greater  than  in  the  other  case.  But  Mr.  Coleridge's  argument 
would  come  to  this,  that  the  damages  could  never  be  anything 
but  what  both  parties  contemplated;  and  where  the  buyer  in- 
tended to  apply  the  thing  to  a  purpose  which  would  make  the 
damages  greater,  and  did  not  intend  to  apply  it  to  the  purpose 
which  the  seller  supposed  he  intended  to  apply  it,  the  conse- 
quence would  be  to  set  the  defendant  free  altogether.  That 
would  not  be  just,  and  I  do  not  think  that  was  at  all  meant  to 
be  expressed  in  Hadley  v.  Baxendale.  Here  the  arbitrator  has 
found  that  what  the  defendants  supposed  when  they  were  agree- 
ing to  furnish  the  derrick  was  that  it  was  to  be  employed  in  the 
most  obvious  manner  to  earn  money,  which  the  arbitrator  as- 
sesses at  420  1.  during  the  six  months'  delay;  and  as  I  believe  the 
natural  consequence  of  not  delivering  the  derrick  was  that  that 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  271 

sum  was  lost,  I  think  the  plaintiffs  should  recover  to  that  ex- 
tent. 

Mellor,  J.  I  am  entirely  of  the  same  opinion.  The  question 
is,  what  is  the  limit  of  damages  which  are  to  be  given  against 
the  defendants  for  the  breach  of  this  contract?  They  will  be 
the  damages  naturally  resulting,  and  which  might  reasonably  be 
in  contemplation  of  the  parties  as  likely  to  flow,  from  the  breach 
of  such  contract.  It  is  not  because  the  parties  are  not  precisely 
ad  idem  as  to  the  use  of  the  article  in  question  that  the  defend- 
ants are  not  to  pay  any  damages.  Both  parties  contemplated  a 
profitable  use  of  the  derrick;  and  when  one  finds  that  the  de- 
fendants contemplated  a  particular  use  of  it  as  the  obvious 
mode  in  which  it  might  be  used,  I  think  as  against  the  plaintiffs 
they  cannot  complain  that  the  damages  do  not  extend  beyond 
that  which  they  contemplated  as  the  amount  likely  to  result  from 
their  own  breach  of  contract. 

Judgment  for  the  plaintiffs  accordingly. 


BROWN  V.  MULLER. 

Exchequer,  1872.    L.  R.  7  Ex.  319. 

An  action  for  non-delivery  of  iron. 

Kelly,  C.  B.  I  should  not  have  felt  much  doubt  as  to  what 
should  be  the  measure  of  damages  in  this  case,  but  for  the  hesita- 
tion expressed  during  the  argument  by  my  brother  Martin;  a 
hesitation  which,  however,  I  understand  now  to  be  removed. 
The  defendant  undertook  in  this  case  to  deliver  500  tons  of  iron 
during  the  months  of  September,  October,  and  November,  1871, 
in  about  equal  portions ;  that  is,  at  the  rate  of  about  166  tons  in 
each  month;  and  he  has  failed  to  deliver  altogether.  Now  the 
proper  measure  of  damages  is  that  sum  which  the  purchaser  re- 
quires to  put  himself  in  the  same  condition  as  if  the  contract  had 
been  performed.  This  being  the  general  principle  of  assessment, 
we  find  that  the  defendant  delivered  no  iron  in  September,  and 
on  the  30th  of  that  month,  I  think,  the  plaintiff  was  entitled  to 
receive,  as  damages,  the  difference  on  that  day  between  the  con- 
tract and  market  price  of  166  tons.  No  other  satisfactory  prin- 
ciple can  be  suggested.  The  plaintiff  might  have  resold  this 
amount  of  iron  to  a  sub-purchaser,  and  to  satisfy  this  sub-con- 
tract might  have  bought  at  the  then  market  price ;  or  else  must 
have  paid  the  sub-purchaser  the  difference;  and  in  either  case 


12(2  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

would  be  entitled  to  receive  it  from  the  defendant.  Then,  when 
the  31st  of  October  arrives,  the  same  state  of  things  recurs  as  to 
the  second  installment  of  iron  to  be  delivered;  and  again  the 
damages  will  be  the  difference  between  the  contract  and  market 
prices  on  that  day.  And  a  similar  calculation  must  be  made 
with  reference  to  the  end  of  November.  Therefore  the  plaintiff 
will  be  entitled  to  recover,  altogether,  the  sum  of  the  three  differ- 
ences at  the  end  of  the  three  months  respectively. 

It  has  been  argued  with  much  ingenuity  that  the  damages 
ought  to  be  estimated  at  a  lower  figure  if  it  appear  that  when  the 
defendant  announced  his  intention  of  not  delivering,  or  at  all 
events  when  the  first  breach  took  place,  and  it  became  apparent 
that  the  contract  could  never  be  performed  at  all,  the  plaintiff 
might  have  entered  into  a  new  contract  to  the  same  effect  as  the 
old  one  for  the  months  of  October  and  November  on  as  favorable 
terms;  and  if  the  plaintiff,  on  hearing  he  would  never  get  de- 
livery, was  bound  to  go  and  obtain,  if  he  could,  the  new  contract 
suggested,  then,  no  doubt,  assuming  that  he  might  have  made 
such  a  contract,  the  damages  ought  to  be  limited  to  his  loss  at 
that  time.  But  there  was,  in  my  opinion,  no  such  obligation. 
He  is  not  bound  to  enter  into  such  a  contract,  which  might  be 
either  to  his  advantage  or  detriment,  according  as  the  market 
might  fall  or  rise.  If  it  fell,  the  defendants  might  fairly  say 
that  the  plaintiff  had  no  right  to  enter  into  a  speculative  contract, 
and  insist  that  he  was  not  called  upon  to  pay  a  greater  difference 
than  would  have  existed  had  the  plaintiff  held  his  hand.  Or 
again,  by  such  a  course,  the  plaintiff  might  be  seriously  injured 
and  yet  have  no  remedy.  Suppose,  for  example,  his  new  con- 
tract was  with  a  person  who  proved  insolvent.  He  would,  in  that 
case,  be  without  redress ;  he  would  have  lost  his  former  contract, 
and  his  new  one  would  turn  out  worthless.  In  either  event, 
therefore,  I  do  not  think  the  plaintiff  could  be  called  upon  to  enter 
into  a  fresh  contract.  If  he  did,  and  thus  obtained  an  advantage, 
he  no  doubt  might  save  the  defendant  from  some  damages.  But 
if  he  should  suffer  a  loss,  as  by  the  insolvency  of  the  new  con- 
tractor, he  could  not  make  the  defendant  answer  for  it.  And  if 
it  should  happen  that  he  might  have  done  better  for  the  defend- 
ant by  waiting  and  making  no  speculative  contract,  the  defendant 
would  in  his  turn  have  a  fair  right  to  complain  that  his  loss  had 
not  been  mitigated  as  far  as  possible. 

The  case  of  Frost  v.  Knight,  L.  R.  7  Ex.  Ill,  has  been  referred 


CONTRACTS    RELATING    TO   PERSONAL   PROPERTY  273 

to  as  showing  that  there  is  a  difference  between  cases  where  the 
contract  is  treated  as  still  subsisting  and  where  it  is  treated  as  at 
an  end.  Now  the  plaintiff  might,  if  he  had  so  elected,  have 
treated  the  contract  as  at  an  end  when  the  defendant  announced 
his  intention  to  break  it.  But  that  is  a  matter  of  election  on  the 
plaintiff's  part,  and  even  although  he  had  elected  thus  to  treat 
the  contract,  yet  in  considering  the  question  of  damages  they 
would  still  be  estimated  with  reference  to  the  times  at  which  the 
contract  ought  to  have  been  performed,  that  is,  in  this  case,  at 
the  end  of  the  months  of  September,  October,  or  November. 
The  damages  should  therefore  be  assessed  on  the  principle  I  have 
indicated,  and  the  rule  made  absolute  to  reduce  the  damages  to 
109  1.  4s. 

Martin,  B.,  and  Channel,  B.,  concur. 


ASHMORE  V.  COX. 

L.  R.  1  Q.  B.  1899,  436. 

Lord  Russell,  of  Killowen,  C.  J.  In  this  ease  the  plaintiffs 
are  suing  the  defendants  for  breach  of  contract  of  April  27, 
1898.  The  contract  related  to  an  intended  shipment  of  250 
bales  of  Manila  hemp  at  a  stipulated  price,  to  be  shipped  by  sailer 
or  sailers  between  May  1  and  July  31.  The  plaintiffs  say  that 
the  defendants  failed  to  comply  with  the  contract.  The  facts 
are  these :  The  contract  was  entered  into  on  April  27,  1898. 
No  shipment  was  made  by  the  defendants  or  for  them  between 
IMay  1  and  July  31,  1898,  and  no  shipment  was  made  by  any 
other  persons  which  the  defendants  sought  to  appropriate  to 
the  contract.  But  on  or  about  September  15  shipment  was 
made  by  a  steamship  called  the  Dulwich  from  Manila  of  hemp 
which  would  in  regard  to  character  and  quality  have  satisfied 
the  contract.  Following  that  shipment,  the  defendants  on 
October  27  made  a  declaration  of  that  shipment  as  a  declara- 
tion of  a  shipment  within  the  terms  of  the  contract. 

The  first  question  is  whether  that  is  a  proper  declaration  in 
compliance  with  the  terms  of  the  contract.  The  declaration  is 
addressed  by  the  defendants  to  the  plaintiffs,  and  is  in  these 

terms :    ' '  Contract,  April  27,  1898,  No ,  for  250  bales  F.  Ct. 

Manila  hemp.  In  fulfilment  of  the  above,  we  beg  to  declare  the 
following  and  request  your  confirmation  in  due  course.  F.  C. 
250  bales.     Per  Dulwich  (ss.),  London.     Bill  of  lading,  dated 


274  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

•Maiiila,  15/9/98  (signed),  C.  S.  Cox  &  Co."  On  October  29 
the  plaintitl's  wrote:  "Contract  dated  27/4/98,  250  bales  liemp 
F.  C.  JMay-July  sailer.  We  return  herewith  your  declaration 
for  250  bales  F.  C.  hemp,  per  Dulwich,  against  above  contract. 
We  are  instructed  by  our  buyers  to  say  they  will  not  accept  this 
hemp,  as  it  is  not  in  accordance  with  their  contract."  They  do 
not  state  the  grounds  upon  which  they  take  up  that  position,  but 
it  is  clear  that  the  groimds  were  that  the  shipment  was  not  by 
sailer  or  sailers,  and  was  not  made  between  May  1  and  July  31. 
So  the  matter  went  on,  the  plaintiffs  not  in  terms  treating  that 
declaration  as  a  breach  of  the  contract,  but  contenting  them- 
selves with  saying,  ''We  cannot  accept  this  as  a  proper  declara- 
tion such  as  we  are  entitled  to  under  the  terms  of  our  con- 
tract." On  November  4  the  defendants  for  the  first  time  write 
saying  that  they  are  not  in  a  position  to  make  any  other 
declaration  than  the  declaration  of  the  shipment  by  the  Dul- 
wich. Up  to  that  time  it  would  have  been  open  to  the  de- 
fendants, as  I  conceive,  had  the  circumstances  of  the  trade  per- 
mitted of  it,  to  have  got  hold  of  any  other  shipment,  if  there 
were  any  such,  of  Manila  hemp  by  sailer  or  sailers  shipped 
between  May  1  and  July  31,  and  applied  such  shipment  to  the 
contract  in  question.  In  my  judgment  the  defendants  are  not 
estopped,  if  they  make  a  declaration  which  is  properly  objected 
to  as  not  answering  the  contract,  from  making  a  fresh  declara- 
tion, provided  always  they  can  make  a  fresh  declaration  with- 
in a  reasonable  time  conformably  with  the  contract. 

The  first  question  that  arises  upon  this  state  of  facts  is,  "Was 
the  declaration  a  bad  declaration?"  On  behalf  of  the  defend- 
ants it  is  said  that  it  was  not  bad,  upon  the  ground  that 
neither  the  stipulation  as  to  sailer  or  sailers  (being  the  character 
of  the  vessel  to  carry  the  intended  shipment),  nor  that  as  to  the 
dates  between  which  the  shipments  were  to  be  made,  were  condi- 
tions precedent  in  the  contract,  but  were  merely  collateral  stipu- 
lations, which,  if  the  breach  of  them  entailed  damages  upon  the 
buyer,  would  give  him  a  right  of  action.  I  am  unable  to  accept 
that  contention.  No  doubt  there  are  a  number  of  cases,  all 
turning  upon  the  particular  contract,  in  which  the  Courts 
have  held  that  certain  stipulations,  which  did  not  go  to  the  es- 
sentials of  the  contract,  are  not  conditions  precedent.  But  those 
eases  do  not,  in  my  judgment,  apply  to  the  dates  of  shipment  in 
the  present  contract,  and  I  am  inclined  to  think  also  that  they 


CONTRACTS    RELATING    TO   PERSONAL   PROPERTY.  2/0 

do  not  apply  to  the  provision  that  shipment  is  to  be  made  b}- 
sailer,  or  sailers  on  this  short  ground — that  in  the  present  con- 
tract the  parties  have  chosen  by  the  very  terms  in  which  the 
stipulation  appears  to  make  those  events  conditions  precedent. 
They  have  said  that  the  buyers  shall  not  be  called  upon  to  accept 
a  shipment  not  in  sailer  or  sailers,  or  not  made  between  May 
1  and  July  31.  I  therefore  hold  that  those  stipulations  are 
conditions  precedent. 

On  behalf  of  the  defendants  it  was  also  contended  that  they 
were  excused  from  the  fulfilment  of  the  contract  on  the  ground 
of  impossibility  of  performance  of  it.  This  contention  was 
divided  into  two  heads.  First,  it  was  said  that  it  was  an  implied 
condition  of  the  contract,  and  therefore  not  depending  upon  tho 
express  words  of  the  contract,  that  it  should  be  possible  to  ship 
between  the  named  dates  by  sailer  or  sailers.  In  support  of  that 
contention  one  or  two  cases  were  cited,  the  principal  being  How- 
ell v.  Coupland,  1  Q.  B.  D.  258.  In  my  judgment  that  case  is  no 
authority  for  the  proposition  here  contended  for;  it  turned  on 
the  construction  of  the  contract  in  that  case.  The  Court  there 
construed  the  contract  as  meaning  that  the  buyer  took  the  chance 
of  the  contract  being  defeated  in  its  performance  by  failure  of 
the  potato  crop  by  disease,  the  seller  using  all  reasonable  skill. 
That  has  no  bearing  upon  the  present  case.  Here  the  stipula- 
tions are  that  the  defendants  shall  sell  250  bales  of  hemp ;  that 
the  shipment  shall  be  made  from  the  Philippine  Islands,  that  it 
shall  be  made  by  sailer  or  sailers,  that  it  shall  be  made  between 
the  named  dates,  and  that  the  declaration  shall  be  made  in  the 
manner  provided  by  the  contract.  The  defendants  have  taken 
upon  themselves  the  absolute  responsibility  of  being  able  to  make 
a  declaration  complying  with  the  contract  and  appropriating  to 
the  contract  250  bales  of  the  commodity  shipped  by  sailer  or-  sail- 
ers between  May  1  and  July  31,  1898.  They  have  taken  upon 
themselves  (subject  to  the  concluding  clause  of  the  contract)  the 
responsibility  that  those  events  shall  take  place,  or  that  they  will 
pay  damages  if  from  any  cause  they  are  prevented  from  carrying 
out  the  contract.  I  therefore  hold  that  there  was  no  such  implied 
condition.  I  do  not  know  that  it  is  necessary,  apart  from  the 
question  of  construction  which  remains,  to  refer  to  the  fact  that 
it  does  appear  that  there  was  a  shipment  which  would  have  been 
capable  of  appropriation  to  this  contract,    if  the  sellers    could 


276  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

have  got  hold  of  it — a  shipment  to  Liverpool  of  hemp    of  the 
requisite  quality  and  quantity. 

Secondly,  it  is  said  that,  even  though  there  is  no  such  implied 
condition,  there  is  an  express  condition  in  the  contract  that  it 
shall  be  possible  to  ship  the  goods  in  conformity  with  the  terms 
of  the  contract.  The  condition  is  as  follows:  "Should  the 
goods  or  any  portion  thereof  not  arrive  in  London  from  loss  or 
other  unavoidable  cause,  this  contract  to  be  void  for  such  por- 
tion," Undoubtedly,  reading  that  clause  by  itself  apart  from 
the  terms  of  the  contract,  I  should  have  hesitated  a  long  time 
before  I  arrived  at  the  conclusion  that,  standing  alone,  it  neces- 
sarily applies  only  to  goods  in  fact  shipped.  But  it  cannot  be 
read  so  as  to  give  effect  to  the  object  of  the  contract  between 
the  parties  without  having  regard  to  the  other  stipulations  con- 
tained in  the  contract.  The  ship  was  not,  as  it  were,  earmarked. 
The  seller  might  appropriate  to  the  contract  any  shipment  of 
proper  quality  by  sailer  or  sailers  between  the  stipulated  dates. 
It  is  therefore  true  to  say,  as  was  very  forcibly  argued  on  behalf 
of  the  plaintiffs,  that  when  you  come  to  consider  the  concluding 
words  of  that  clause  it  is  clear  that  the  buyer  has  nothing  to  do 
with  any  goods  not  appropriated  to  the  contract  by  declaration, 
and  it  is  clear  that  the  defendants,  having  made  a  faulty  dec- 
laration, might  declare  another  shipment  made  by  any  ship 
answering  the  description  in  the  contract.  The  condition  there- 
fore contemplates  goods  which  have  been  shipped,  and  I  think 
also  declared.  In  my  judgment  the  facts  in  this  case  do  not  show 
that  the  non-arrival  of  the  goods  in  London  was  caused  by 
any  unavoidable  cause  within  the  meaning  of  the  contract. 

As  to  the  question  of  damages.  If  when  the  defendants  made 
the  declaration  which  I  have  held  to  be  bad  under  the  contract 
they  had  said,  ' '  This  is  the  only  declaration  we  can  make, ' '  and 
the  plaintiffs  had  said,  "Very  well,  you  have  broken  the  con- 
tract," the  measure  of  damage  would  be  computable  by  the  dif- 
ference between  the  contract  price  and  the  market  price  at  that 
date.  But  the  plaintiffs  merely  said,  "We  cannot  accept  this  as 
a  declaration."  I  think  that  if  the  defendants  could  then  have 
obtained  a  shipment  which  complied  with  the  terms  of  the  con- 
tract they  might  have  amended  the  declaration,  because  the 
plaintiffs  had  not  treated  that  as  an  absolute  breach  and  repudia- 
tion of  the  contract.  On  November  4  the  defendants  stated  that 
they  could  not  make  any  other  declaration — in  effect,  that  they 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  277 

repudiated  the  contract.  The  plaintiffs  thereupon  issued  their 
writ.  The  difference  between  the  contract  price  and  the  market 
price  on  November  4  is  the  measure  of  damages. 

Judgmerit  for  the  plaintiffs. 


a       Breach  of  Warranty. 
PERLEY  V.  BALCH. 

Massachusetts,  1839.      23  Pick.  283. 

Assumpsit  on  a  promissory  note.  At  the  trial  in  the  court  of 
common  pleas,  before  Williams  J.,  the  defendant  introduced 
evidence  tending  to  prove,  that  the  consideration  of  the  note 
was  the  sale  of  an  ox  by  the  plaintiff  to  the  defendant,  with  a 
warranty,  that  the  ox  would  fatten  as  well  as  any  one  the  de- 
fendant then  had ;  that  one  eye  of  the  ox,  which  was  then  appar- 
ently defective  and  diseased,  was  falsely  and  fraudulently  rep- 
resented by  the  plaintiff  to  have  been  hooked  out,  whereas,  in 
fact,  it  had  been  destroyed  by  a  cancer;  and  that  this  dis- 
ease was  incurable,  and  rendered  the  ox  incapable  of  being  fat- 
tened and  entirel}^  worthless  for  any  other  purpose. 

It  did  not  appear,  that  the  defendant  had  returned  or  offered 
to  return  the  ox  to  the  plaintiff,  or  had  ever  notified  to  the  plain- 
tiff, that  he  was  dissatisfied  with  the  contract,  until  after  the  com- 
mencement of  this  action,  which  was  several  years  after  the  sale. 
The  defendant  kept  the  ox  in  his  pasture,  &c.  for  several  months, 
and  was  at  some  trouble  to  ascertain  whether  it  would  answer  his 
purpose.    It  did  not  appear  what  became  of  the  ox  afterwards. 

The  defendant  also  offered  evidence  tending  to  show,  that  he 
purchased  the  ox  for  the  sole  purpose  of  fattening  it,  and  that 
this  was  known  to  the  plaintiff  at  the  time  of  the  sale;  and  he 
contended,  that,  upon  these  facts,  there  was  an  implied  war- 
ranty on  the  part  of  the  plaintiff,  that  the  ox  should  be  reason- 
ably fit  for  that  purpose. 

The  judge  instructed  the  jury,  that  no  such  implied  war- 
ranty arose  from  these  facts ;  that  if  they  were  satisfied  that  the 
plaintiff  warranted,  that  the  ox  would  fatten  as  well  as  any 
one  which  the  defendant  then  had,  and  that  the  warranty  was 
false,  or  if  they  were  satisfied,  that  the  plaintiff  falsely  and 
fraudulently  represented  the  eye  of  the  ox  to  have  been  hooked 
out,  whereby  the  defendant  was  induced  to  purchase  it.  and  if 
they   were   further  satisfied,   that   the   ox,   if  it   had   been   re- 


278  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

turned  to  the  plaintifY  in  a  reasonable  time,  would  have  been  of 
uo  pecuniary  value  to  him,  the  defendant  would  be  entitled  to  a 
verdict ;  but  that,  otherwise,  their  verdict  should  be  for  the  plain- 
tilf. 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  de- 
fendant  excepted   to   the    instructions   to  the  jury. 

Morton,  J.,  afterward  drew  up  the  opinion  of  the  court.  The 
instruction,  that  there  was  uo  implied  warranty,  is  not  now  com- 
plained of,  and  is  undoubtedly  correct.  See  Emerson  v.  Brig- 
ham,  10  Mass.  R.  197 ;  Shepherd  v.  Temple,  3  N.  Hamp.  R.  455. 
Every  sale  of  chattels  contains  an  implied  warranty,  that  the 
property  of  them  is  in  the  vendor.  But  it  is  well  settled  by 
authority  as  a  general  rule,  that  no  warranty  of  the  quality,  is 
implied  from  the  sale.  The  maxim,  caveat  emptor,  governs.  2 
Kent's  Com.  478;  Chitty  on  Contr.  133;  Champion  v.  Short,  1 
Campb.  53;  Bragg  v.  Cole,  6  Moore,  114;  Stuart  v.  Wilkins,  1 
Doug.  20 ;  Parkinson  v.  Lee,  2  East,  314 ;  Mockbee  v.  Gardner, 
2  Har.  &  Gill,  176. 

But  the  learned  justice  of  the  common  pleas  further  instructed 
the  jury  that  if  there  was  a  fraud  in  the  sale,  or  an  express  war- 
ranty and  a  breach  of  it,  in  either  case,  the  defendant  might 
avoid  the  contract,  by  returning  the  ox  within  a  reasonable 
time;  or,  if  the  ox  would  have  been  of  no  value  to  the  plain- 
tiff, then  without  returning  him.  Whether  the  jury  found  their 
verdict  upon  the  ground,  that  no  fraud  or  express  warranty  was 
proved,  or  that  the  ox  was  of  no  value,  does  not  appear.  If 
therefore  any,  part  of  the  instructions  was  incorrect,  the  defend- 
ant is  entitled  to  a  new  trial. 

Where  the  purchaser  is  induced  by  the  fraudulent  misrepre- 
sentations of  the  seller,  to  make  the  purchase,  he  may,  within  a 
reasonable  time,  by  restoring  the  seller  to  the  situation  he  was 
in  before  the  sale,  rescind  the  contract,  and  recover  back  the 
consideration  paid,  or,  if  he  has  given  a  note,  resist  the  pay- 
ment of  it.  Here  was  no  return  of  the  property  purchased,  but  if 
that  property  was  of  no  value,  whether  there  was  any  fraud  or 
not,  the  note  would  be  nudum  pactum.  The  defendant's  counsel, 
not  controverting  the  general  rule,  objects  to  the  qualification  of 
it.  He  says,  that  the  ox,  though  valueless  to  the  defendant,  might 
be  of  value  to  the  plaintiff,  and  so  the  defendant  would  be  bound 
by  his  contract,  although  he  acquired  nothing  by  it.  But  a  dam- 
age to  the  promisee  is  as  good  a  consideration  as  a  benefit  to  the 


CONTRACTS   RELATING    TO   PERSONAL   PROPERTY.  279 

promisor.  If  a  chattel  be  of  no  value  to  any  one,  it  cannot  be 
the  basis  of  a  bargain ;  but  if  it  be  of  any  value  to  either  party, 
it  may  be  a  good  consideration  for  a  promise.  If  it  is  beneficial  to 
the  purchaser,  he  certainly  ought  to  pay  for  it.  If  it  be  a  loss  to 
the  seller,  he  is  entitled  to  remuneration  for  his  loss. 

But  it  is  apparent,  that  a  want  of  consideration  was  not  the 
principal  ground  of  defense.  The  defendant  mainly  relied  upon 
fraud  or  a  warranty.  And  to  render  either  available  to  avoid 
the  note,  it  was  indispensable,  that  the  property  should  be  re- 
turned. He  cannot  rescind  the  contract,  and  yet  retain  any 
portion  of  the  consideration.  The  only  exception  is,  where  the 
property  is  entirely  worthless  to  both  parties.  In  such  case  the 
return  would  be  a  useless  ceremony,  which  the  law  never  re- 
quires. The  purchaser  cannot  derive  any  benefit  from  the  pur- 
chase and  yet  rescind  the  contract.  It  must  be  nullified  in 
toto,  or  not  at  all.  It  cannot  be  enforced  in  part  and  rescinded 
in  part.  And,  if  the  property  would  be  of  any  benefit  to  the  sell- 
er, he  is  equally  bound  to  return  it.  He  who  would  rescind  a  con- 
tract, must  put  the  other  party  in  as  good  a  situation  as  he 
was  before;  otherwise  he  cannot  do  it.  Chitty  on  Contr.  276; 
Hunt  V.  Silk,  5  East,  449;  Conner  v.  Henderson,  14  Mass.  R. 
319. 

The  facts  relied  upon  by  the  defendant  to  defeat  the  note, 
might,  if  proved,  be  used  in  mitigation  of  damages.  If  there 
was  a  partial  failure  of  consideration,  or  deception  in  the  quality 
and  value  of  it,  or  a  breach  of  warranty,  the  defendant  may  avail 
himself  of  it  to  reduce  the  damages  to  the  worth  of  the  chattels 
sold,  and  need  not  resort  to  an  action  for  deceit,  or  upon  the  war- 
ranty. Chitty  on  Contr.  140 ;  Germaine  v.  Burton,  3  Stark.  R.  32 ; 
Basten  v.  Butter,  7  East,  480;  Poulton  v.  Lattimore,  9  Barn.  & 
Cressw.  259;  Bayley  on  Bills,  (2d  Amer.  Ed.)  531,  and  cases 
cited.  But  he  is  not  bound  to  do  this.  He  may  prefer  to  bring  a 
separate  action,  and  he  has  an  election  to  do  so.  The  present 
judgment  will  not  bar  such  an  action.  But  however  this  may 
be,  it  does  not  appear,  that  any  instructions  were  given  or  re- 
fused upon  this  point.  The  value  of  the  property  to  the  de- 
fendant would  have  been  the  true  rule  of  damages.  And  had 
he  desired  it,  doubtless,  such  instructions  would  have  been 
given.  But  as  he  did  not  request  them,  he  cannot  complain  of 
their  omission. 

Judgment  of  the  Court  of  Common  Pleas  affirmed. 


280  DAMAGES    IN   ACTIONS   ON    CONTUACTS. 

GARY  V.  GRUMAN. 
New  York,  1S43.    4  Hill,  625. 

The  action  was  for  breach  of  warranty  of  soundness  on  sale 
of  a  horse.  The  price  paid  for  the  horse  was  $90,  and  the  breach 
comphiined  of  was  a  disease  in  the  horse's  eyes.  On  the  trial 
in  the  common  pleas,  after  Gruman,  the  plaintiff,  had  given  evi- 
dence tending  to  prove  the  warranty  and  the  disease,  the  defend- 
ant, in  the  course  of  cross-examining  one  of  plaintiff's  witnesses, 
enquired  what  the  horse  would  have  been  worth  at  the  time  of 
the  sale,  if  he  had  been  sound;  declaring  that  one  object  of  the 
question  was,  to  show  the  amount  of  the  plaintiff's  damages,  if 
entitled  to  any,  under  the  following  rule,  which  he  contended  to 
be  the  true  one,  viz.  "that  the  proper  measure  of  damages  was 
the  difference  between  the  real  value  of  the  horse  if  sound,  and 
his  real  value  with  the  defect  complained  of."  The  court, 
though  they  received  the  answer  for  another  purpose,  overruled 
it  for  the  purpose  proposed  as  above,  holding  the  true  measure 
of  damages  to  be,  the  difference  between  the  price  paid,  and  the 
value  with  the  defects.     Defendant  took  exception. 

CowEN,  J,  *  *  *  A  warranty  on  the  sale  of  a  chattel  is,  in 
legal  effect,  a  promise  that  the  subject  of  sale  corresponds  with 
the  warranty,  in  title,  soundness  or  other  quality  to  which  it 
relates;  and  is  always  so  stated  in  the  declaration  when  this  is 
technically  framed.  It  naturally  follows  that  if  the  subject 
prove  defective  within  the  meaning  of  the  warranty,  the  stipu- 
lation can  be  satisfied  in  no  other  way  than  by  making  it  good. 
That  cannot  be  done  except  by  paying  to  the  vendee  such  sum 
as,  together  with  the  cash  value  of  the  defective  article,  shall 
amount  to  what  it  would  have  been  worth  if  the  defect  had  not 
existed.  There  is  no  right  in  the  vendee  to  return  the  article 
and  recover  the  price  paid,  unless  there  be  fraud,  or  an  express^ 
agreement  for  a  return.  Voorhees  v.  Earl,  2  Hill,  288.  Nor 
does  it  add  to  or  detract  any  from  the  force  or  compass  of  the 
stipulation  that  the  vendee  may  have  paid  a  greater  or  less  price. 
The  very  highest  or  the  very  lowest  and  most  trifling  consider- 
ation is  sufficient.  A  promise,  in  consideration  of  $1,  that  a 
horse  which,  if  sound,  would  be  worth  $100,  is  so,  will  oblige 
the  promisor  to  pay  $100  if  the  horse  shall  prove  totally  worth- 
less by  reason  of  unsoundness,  and  $50  if  his  real  value  be  less 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  281 

by  half,  and  so  in  proportion.     Nor  could  the  claim  be  enhanced 
by  reason  that  the  vendee  had  paid  $1,000. 

The  rule  undoubtedly  is,  that  the  agreed  price  is  strong  evi- 
dence of  the  actual  value;  and  this  should  never  be  departed 
from,  unless  it  be  clear  that  such  value  was  more  or  less  than  the 
sum  at  which  the  parties  fixed  it.  It  is  sometimes  the  value  of 
the  article  as  between  them,  rather  than  its  general  worth,  that 
is  primarily  to  be  looked  to — a  value  which  very  likely  depended 
on  considerations  which  they  alone  could  appreciate.  Things 
are,  however,  very  often  purchased  on  account  of  their  cheap- 
ness. In  the  common  language  of  vendors,  they  are  offered  at  a 
great  bargain,  and  when  taken  at  that  offer  on  a  warranty,  it 
would  be  contrary  to  the  express  intention  of  the  parties,  and 
perhaps  defeat  the  warranty  altogether,  should  the  price  be  made 
the  inflexible  standard  of  value.  A  man  sells  a  bin  of  wheat  at 
50  cents  per  bushel,  warranted  to  be  of  good  quality.  It  is 
worth  $1  if  the  warranty  be  true ;  but  it  turns  out  to  be  so  foul 
that  it  is  worth  no  more  than  75  cents  per  bushel.  The  pur- 
chaser is  as  much  entitled  to  his  25  cents  per  bushel  in  damages 
as  he  would  have  been  by  paying  his  dollar,  and  if  he  had  given 
$2  per  bushel  he  could  recover  no  more.  So,  a  horse  six  years 
old  is  sold  for  $50  with  warranty  of  soundness.  If  sound,  he 
would  be  worth  $100.  He  wants  eyesight,  and  thus  his  real 
value  is  reduced  one-half.  The  vendee  is  entitled  to  $50  as  dam- 
ages ;  and  could  recover  no  more  had  he  paid  $200.     *     *     * 

It  is  impossible  to  say,  nor  have  we  the  right  to  enquire, 
whether  the  real  value  of  the  horse  in  question,  supposing  him 
to  have  been  sold,  would  have  turned  out  to  be  more  or  less  than 
the  $90  paid.  Suppose  the  jury  thought,  with  one  witness  whom 
the  court  allowed  to  state  such  value  for  another  purpose,  that  it 
was  not  more  than  $80 ;  the  plaintiff  then  recovered  $10,  not  on 
account  of  the  defect,  but  because  he  had  been  deficient  in  care 
or  sound  judgment  as  a  purchaser.  On  the  other  hand,  had  the 
horse  been  actually  worth  $100,  the  defendant  would  have  been 
relieved  from  the  payment  of  the  $10  because  he  had  made  a  mis- 
take of  value  against  himself.  The  cause  might  thus  have  turned 
on  a  question  entirely  collateral  to  the  truth  of  the  warranty. 


282  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

We  think  the  court  below  erred,  and  for  this  reason  the  judg- 
ment must  be  reversed.  We  direct  that  a  Venire  dc  novo  issue 
from  that  court,  and  that  the  costs  shall  abide  the  event. 

Rule  accordingly. 


CAIIEN  V.  PLATT. 

New  York,  1877.      69  N.  Y.  348. 

At  the  trial,  verdict  was  rendered  in  favor  of  the  plaintiff. 
The  General  Term  of  the  Superior  Court  of  the  city  of  New  York 
affirmed  the  judgment,  from  which  the  defendants  now  appeal. 
The  action  was  brought  to  recover  damages  for  the  alleged  breach 
of  a  contract  of  purchase  and  sale. 

Earl,  J.  In  September,  1872,  at  the  city  of  New  York,  the 
plaintiffs  sold  to  the  defendants  10,000  boxes  of  glass,  at  seven 
and  one-half  per  cent,  discount  from  the  tariff  price  of  July, 
1872,  to  be  paid  for  in  gold,  at  New  York  upon  delivery  of  in- 
voice and  bill  of  lading,  by  bills  of  exchange  on  Antwerp.  The 
glass  was  to  be  of  approved'  standard  qualities,  and  was  to  be 
shipped  on  board  of  sailing  vessels  at  Antwerp,  and  to  be  at  the 
risk  of  the  defendants  as  soon  as  shipped,  and  they  were  to  in- 
sure and  pay  the  freight  and  custom  duties.  The  glass  was  to  be 
delivered  during  the  months  of  October,  November  and  Decem- 
ber, 1872,  and  January,  1873.  In  pursuance  of  this  contract, 
the  plaintiff  delivered  to  the  defendants  4,924  boxes  of  glass,  for 
which  they  paid.  They  refused  to  receive  any  more,  and  this 
action  was  brought  to  recover  damages  consequent  upon  such 
refusal. 

The  defendants  claimed,  and  gave  evidence  tending  to  prove, 
that  the  glass  delivered  was  not  of  approved  standard  quality, 
and  hence  that  they  had  the  right  to  refuse  to  take  the  balance. 

While  some  months  after  the  glass  was  delivered  the  de- 
fendants complained  of  its  quality,  they  at  no  time  offered  to 
return  it,  or  gave  plaintiff  notice  to  retake  it.  They  received 
it  under  the  contract,  and  it  is  not  important  in  this  action  to 
determine,  as  no  counterclaim  is  set  up,  whether  or  not  a  right 
of  action  for  damages  on  account  of  the  inferior  quality  of  the 
glass  survived  the  acceptance.  The  fact  that  the  glass  delivered 
and  received  upon  the  contract  was  inferior,  did  not  give  them 
the  right  to  repudiate  the  contract  altogether.  They  could  de- 
mand better  glass,  and  when  the  plaintiff  offered  to  deliver  the 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  283 

balance,  if  it  was  inferior,  they  could  refuse  to  accept  it.  But 
if  plaintiff  was  ready  and  willing  to  deliver  for  the  balance 
such  glass  as  the  contract  called  for,  they  were  bound  to  re- 
ceive it.  Here  the  plaintiff  requested  them  to  take  the  balance 
of  the  glass,  and  they  refused  to  take  any  more,  and  thus  re- 
pudiated and  put  an  end  to  the  contract.  There  was  no  proof 
that  the  plaintiff  insisted  upon  delivering  inferior  glass,  or  that 
he  was  not  ready  and  willing  to  deliver  glass  of  the  proper 
quality.  They  did  not  take  the  position  that  they  were  willing 
to  receive  glass  of  approved  standard  quality,  but  refused  to 
take  any  more  glass  under  the  contract.  There  was,  there- 
fore, such  a  breach  of  contract  as  enabled  the  plaintiff  to  re- 
cover such  legal  damages  as  he  sustained  by  the  breach. 

The  only  other  question  to  be  considered  is  whether  a  proper 
rule  of  damages  was  laid  down  by  the  court  at  the  trial. 

The  contract  was  made  in  New  York,  and  it  was  doubtless 
contemplated  by  the  parties  that  the  glass  would  be  carried  to 
New  York.  But  the  plaintiff  was  not  bound  to  deliver  it  there. 
His  delivery  was  upon  shipboard  at  Antwerp,  and  after  the 
glass  was  shipped  the  defendants  could  transport  it  to  any  part 
of  the  world.  It  was  then  at  their  risk,  and  they  were  liable  to 
pay  for  it,  although  it  should  be  lost.  After  plaintiff  had 
shipped  the  glass,  all  he  was  bound  further  to  do,  to  entitle  him 
to  payment,  was  to  present  to  the  defendants  at  New  York  the 
invoices  and  bills  of  lading  of  the   glass. 

Here  the  balance  of  the  glass  was  not  actually  delivered. 
The  defendants  notified  plaintiff  not  to  ship  and  absolutely 
refused  to  take  any  more,  and  hence  the  glass  remained  in  Bel- 
gium. The  general  measure  of  damages  in  such  a  case  is  the 
difference  between  the  contract  price  and  the  market  price  at 
the  time  and  place  of  delivery.  This  measure  is  adopted  as  one 
that  will  generally  give  complete  indemnity  to  the  seller.  He 
can  dispose  of  the  commodity  contracted  to  be  sold  at  the  mar- 
ket price,  and  his  damage  will  be  the  difference  between  the 
price  thus  obtained  and  the  price  he  would  have  received  if  the 
contract  had  been  performed.  Evidence  as  to  the  price  need 
not  be  confined  to  the  precise  time  when  the  contract  was  to 
have  been  performed.  It  may  sometimes  be  impracticable  to 
show  the  price  at  the  precise  time,  and  hence  evidence  of  the 
price  for  a  brief  period  before  and  after  the  time  may  be  given, 
not  for  the  purpose  of  establishing  a  market  price  at  any  other 


284  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

time,  but  for  the  purpose  of  showing  as  well  as  practicable 
the  market  price  on  the  day  the  contract  was  to  have  been  per- 
formed.   So  it  may  not  always  be  practicable  to  show  the  price 
at  the  precise  place  of  delivery.     There  may  have  been  no  sales 
of  the  commodity  there,  and  hence  evidence  of  the  price  at  places 
not  distant,  or  in  other  controlling  markets  may  be  given,  not 
for  the  purpose  of  establishing  a  market  price  at  any  other 
place,  but  for  the  purpose  of  showing  the  market  price  at  the 
place  of  delivery.     (Dana  v.  Fiedler,  12  N.  Y.  40;  Dustan  v. 
Mc  Andrew,  44  N.  Y.  72;  Durst  v.  Burton,  47  N.  Y.  167.)  Here 
there  was  no  difficulty.     There  was  a  market  price  at  the  place 
of   delivery.     The   defendants   proved  that   the   market   price 
there  was  thirty-seven  and  one-half  per  cent,  off  from  the  tariff 
rate,  and  the  plaintiff  proved  that  the  market  price  in  New  York 
was  fifty  per  cent.  off.     The  court  charged  the  jury  that  the 
plaintiff  was  entitled  to  recover  the  difference  between  the  con- 
tract price  and  the  market  price  in  the  city  of  New  York,  and 
this  charge  gave  the  plaintiff  several  thousand  dollars  more  than 
he  could  upon  the  evidence  have  recovered  if  the  court  had 
charged  that  the  market  price  at  Atntwerp  should  be  taken  in- 
stead of  that  at  New  York.    In  this  charge,  which  was  properly 
excepted  to,  the  court  erred,  and  for  this  error  the  judgment 
must  be  reversed  and  new  trial  granted,  costs  to  abide  event. 

All  concur. 

Judgment  reversed. 


HAMMOND  V.  BUSSEY. 

Court  of  Appeal,  1887.     20  Q.  B.  Div.  79. 

Action  for  breach  of  warranty  on  a  contract  to  supply  coal. 

Lord  Esher,  M.  R.  In  this  case  the  plaintiffs  bought  from 
the  defendant  "steam-coal,"  which  was  to  be  coal  suitable  for 
use  on  steamers.  At  the  time  when  the  defendant  sold  the 
coal,  he  knew  that  the  plaintiffs  were  buying  the  coal  in  order 
to  sell  it  again  to  the  owners  of  steamers  calling  at  Dover  to 
be  used  as  steam-coal  on  such  steamers;  and  he  therefore 
knew  that  the  plaintiffs  would  enter  into  contracts  with  others 
similar  to  the  contract  he  himself  had  made  with  the  plaintiffs, 
that  is  to  say,  into  contracts  for  the  sale  of  steam-coal,  which 
would  amount  to  a  warranty  that  the  coal  was  reasonably  fit 
to  be  used  for  the  purpose  of  steam-coal  on  board  steamers. 


CONTRACTS   RELATING    TO   PERSONAL   PROPERTY.  285 

He  did  not  know,  it  is  true,  with  what  specific  persons  the 
plaintiffs  would  make  such  contracts,  but  that  seems  to  me 
immaterial.  The  defendant  supplied  under  the  contract  coal 
that  was  not  reasonably  fit  to  be  used  as  such  steam-coal,  that 
is  to  say,  something  different  from  that  which  he  had  con- 
tracted to  supply.  The  fact  that  this  was  so  was  not  a  fact 
which  would  be  patent  to  the  plaintiffs  on  inspection  of  the 
coal;  it  could  only  be  found  out  when  it  came  to  be  used, 
which  was  not  by  the  plaintiffs,  but  by  their  sub-vendees. 
Such  a  breach  of  such  a  contract  with  regard  to  such  a  subject- 
matter  necessarily  made  the  plaintiffs  liable  to  an  action  by 
their  sub-vendees,  and  the  result  was  the  plaintiffs  were  sued 
for  damages  by  their  sub-vendees.  The  plaintiffs,  when  sued, 
would  be  in  the  difficulty  that  they  had  no  opportunity, 
at  the  time  when  they  entered  into  the  sub-contract,  or  when 
they  delivered  the  coal,  of  knowing  whether  the  coal  answered 
the  description  given  in  such  sub-contract.  What  then  was 
the  plaintiffs'  position?  Was  it  reasonable  that  they  should 
take  the  mere  word  of  the  persons  making  a  claim  upon  them 
that  the  coal  was,  not  merely  bad,  but  so  bad  that  it  could 
not  reasonably  be  considered  fit  for  use  as  steam-coal  on  steam- 
ships? Was  it  reasonable  that  they  should,  whether  they  were 
dealing  with  the  matter  on  their  own  account  or  on  account  of  the 
defendant,  submit  to  such  a  claim  without  having  in  any  way 
tested  it? 

If  the  defect  in  the  coal  had  been  one  which  would  have  been 
patent  on  inspection,  and  which  the  plaintiffs  could  have  seen 
before  they  sold  the  coal  again,  the  case  might  have  assumed  a 
different  aspect.  That  not  being  so,  the  plaintiffs  would  have 
nothing  to  rely  upon  at  first  but  the  mere  words  of  the  sub- 
vendees.  Under  those  circumstances  it  would  not  have  been 
reasonable,  either  on  their  own  account  or  on  that  of  the  de- 
fendant, for  the  plaintiffs  to  submit  to  judgment  at  once  witlv 
out  defending  the  action  or  testing  the  claim  in  any  way.  If  they 
were  to  defend  the  action,  of  course  they  would  not  be  sure  to 
win  ;  whether  they  would  win  or  lose  would  depend  on  the  extent 
to  which  the  evidence  went  as  to  the  quality  of  the  coal,  of  which 
the  plaintiffs  could  not  judge,  and  which  they  probably  could  not 
satisfactorily  ascertain  or  prove  without  the  assistance  of  the  de- 
fendant. In  order  to  make  themselves  as  safe  as  possible  in  this 
respect,  the  plaintiffs  gave  notice  of  the  claim  against  them  to 


28G  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

the  present  defendant,  and  thereupon  the  defendant  insisted  that 
the  coal  he  had  supplied  was  according  to  contract.  The  value 
of  that  fact  is  to  show  the  plaintiff's  position,  and  to  make  it 
still  more  reasonable  that  they  should  defend  the  action  by  their 
sub-vendees  agaiust  them.  They  accordingly  defended  the  ac- 
tion, and  of  course  would  become  liable  to  costs  in  that  action, 
if,  by  reason  of  any  breach  of  contract  by  the  defendant,  the  de- 
fence was  unsuccessful.  That  defence  appears  to  have  turned 
entirely  on  the  question  of  breach  of  warranty.  There  is  noth- 
ing to  show  that  it  depended  on  anything  else,  or  that  any  dam- 
ages were  given  except  for  the  breach  of  warranty.  The  defend- 
ant has  admitted  that  the  damages  given  in  that  action  were 
merely  the  damages  naturally  resulting  from  the  breach  of  war- 
ranty, for  he  has  paid  the  amount  of  them  into  court  in  this  ac- 
tion. Furthermore,  it  is  not  suggested  that  the  costs  which  the 
plaintiffs  incurred  were  extravagantly  or  recklessly  incurred, 
or  that  they  are  anything  but  fair  and  honest  costs  of  a  fair  and 
honest  defence.  The  plaintiffs  sue  the  defendant  for  the  damages 
occasioned  by  his  admitted  breach  of  contract,  viz.,  in  supply- 
ing coal  not  according  to  contract.  The  question  is,  what  are 
the  damages  which  they  can  recover  ?  We  find  the  rule  of  law  as 
to  measure  of  damages  enunciated  in  the  case  of  Hadley  v.  Bax- 
endale.  It  may  be  that  the  rule  so  laid  down  was  not  neces- 
sary for  the  purpose  of  deciding  that  ease,  but  it  is  far  too  late 
to  question  it.  The  rule,  though  frequently  commented  upon, 
has  been  over  and  over  again  adopted  by  the  courts,  and  must 
now  be  considered  to  be  the  law  on  the  subject.  We  must  there- 
fore treat  the  present  case  on  the  footing  that  the  question  is 
as  to  the  true  application  of  that  rule  to  the  measure  of  dam- 
ages for  such  a  breach  of  such  a  contract  under  such  circum- 
stances as  we  have  to  deal  with  here.  We  have  not  got  to  deter- 
mine how  that  rule  would  apply  to  other  breaches  of  other  con- 
tracts imder  those  circumstances  than  those  we  have  now  to  con- 
sider. The  rule  is  laid  dovm  thus:  "Where  two  parties  have 
made  a  contract  which  one  of  them  has  broken,  the  damages 
which  the  other  party  ought  to  receive  in  respect  of  such 
breach  of  contract" — it  is  to  be  observed  in  passing  that  the  rule 
is  not  contemplating  a  breach  of  a  contract  to  pay  damages,  but 
the  damages  which  are  recoverable  in  respect  of  a  breach — 
"should  be  such  as  may  fairly  and  reasonably  be  considered 
either  arising  naturally,  i.  e.,  according  to  the  usual   course  of 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  287 

things,  from  such  breach  of  contract  itself. ' '    That  is  the  enun- 
ciation of  the  rule  with  regard  to  damages  for  a  breach  of  con- 
tract where  no  special  circumstances  arise,  and  would  apply  to 
this  case  if  there  had  been  no  sub-contract  which  the  defendant 
knew  to  exist  or  to  be  likely  to  be  made.     The  rule  goes  on 
to  state  what  the  measure  of  damages  is  where  there  are  special 
circumstances,  as  follows:  "or  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  both  parties,  at  the 
time  they  made  the  contract,  as  the  probable  result  of  the  breach 
of  it."    It  has  been  argued  that  these  words  are  not  an  enlarge- 
ment of  the  former  part  of  the  rule,  but  I  cannot  take  that  view 
of  them.     It  is  to  be  observed  that  the  words  are  not  "such 
damages  as  were  in  fact  in  the  contemplation  of  the  parties  at  the 
time  they  made  the  contract, ' '  which  would  have  raised  a  ques- 
tion of  fact  for  the  jury,  but  "such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties,"  not  as 
the  inevitable,  but  as  "the   probable  result  of  the  breach. "    The 
next  sentence  of  the  judgment  is,  I  think,  to  be  considered  rather 
as  a  valuable  exemplification  of  the  rule,  an  illustration  of  the 
circumstances  under  which  the  second  branch  of  the  rule  would 
apply,  than  as  part  of  the  rule  itself.    It  proceeds :    "Now,  if  the 
special  circumstances  under  which  the  contract    was    actually 
made  were  communicated  by  the  plaintiffs  to  the  defendants,  and 
thus  known  to  both   parties,   the   damages   resulting   from   the 
breach  of  such  a  contract,  which  they  would  reasonably  contem- 
plate, would  be  the  amount  of  injury  which  would  ordinarily  fol- 
low from  a  breach  of  contract  imder  these  special  circumstances 
so  known  and  communicated."     I  do  not  think  that  there  is 
anything  in  those  words  to  show  that  the  second  branch   of  the 
rule  must  be  confined  to  the  case  of  a  sub-contract  already  actual- 
ly made  at  the  time  of  the  making  of  the  contract,  and  would 
not  apply  to  the  case  of  a  sub-contract  not  yet  actually  made,  but 
which  will  probably  be  made.     I  think  that  this  sentence  must 
be  looked  upon  as  intended  to  be  an  exemplification  of  the  second 
branch  of  the  rule  already  stated  rather  than  as  part  of  it ;  and 
in  any  case  it  seems  to  me  clear  that  the  rule  would  apply  to  the 
case  of  a  sub-contract  which  within  the  knowledge  of  the  defend- 
ant was  in  the  ordinary  course  of  business  sure  to  be  made.    We 
have  to  apply  that  rule  to  the  sale    and  purchase    of  such    an 
article  with  such  a  warranty  as  that  now  in  question,    with  the 
knowledge  on  the  part  of  the  vendor  that  there  would  be  a  sub- 


288  DAMAGES    IN    ACTIONS   ON    CONTILVCTS. 

sale  by  the  vendees  with  a  similar  warranty ;  and  to  see  whether, 
under  these  cireinnstanees,  the  bringing  oi"  an  action  by  the  sub- 
vendees  in  the  event  of  there  being  a  breach  of  the  warranty 
by  the  vendees,  and  the  defence  of  such  action  by  the  vendees, 
are  consequences  that  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  the  parties  at  the  time  they  made  the 
contract  as  a  probable  result  of  the  breach  of  it.  Such  a  ques- 
tion is  one  upon  which  those  who  have  to  determine  it  must  ex- 
ercise their  minds  according  to  the  circumstances  of  the  par- 
ticular case.  It  is  impossible  for  us  to  lay  down  a  rule  as  to  what 
would  be  reasonably  to  be  supposed  to  have  been  in  the  contem- 
plation of  the  parties  in  the  cases  of  other  contracts  made  with 
regard  to  other  subject-matters  under  other  circumstances.  We 
can  onl}^  apply  the  rule  laid  down  as  above  stated  to  the  circum- 
stances of  the  case  before  us.  We  must  say,  using  our  knowl- 
edge of  business  and  affairs,  what  may  reasonably  be  supposed 
to  have  been  in  the  contemplation  of  the  parties  as  the  result  of  a 
breach  of  the  contract  under  the  circumstances.  I  do  not  think 
that  the  question  is  one  for  a  jury,  though  I  think  that  possibly, 
imder  certain  circumstances,  with  regard  to  some  subject-mat- 
ters, it  would  be  competent  to  a  judge  to  ask  particular  questions 
of  a  jury  in  order  to  assist  him  in  coming  to  a  conclusion  on  such 
a  question.  There  are,  however,  no  such  circumstances  here.  I 
cannot  doubt  that  any  business  man  would  contemplate,  as  be- 
ing, according  to  the  ordinary  course  of  things  under  the  cir- 
cumstances, not  only  the  probable  but  the  inevitable  result  of 
such  a  breach  of  contract,  that  there  would  be  a  lawsuit  by  the 
sub-vendees,  and  that  the  reasonable  course  to  be  pursued  by 
the  vendees  might  be  that  they  should  not  at  once  submit  to  the 
claim,  but  that,  imless  they  could  get  information  from  the  ven- 
dor that  there  was  really  no  defense,  they  should  defend  the  ac- 
tion. It  would  not,  of  course,  be  the  inevitable  result  that  the 
vendees  should  lose  the  action ;  that  would  depend  on  the  ques- 
tion whether  there  was  a  breach  of  the  warranty,  and  whether,  if 
so,  it  could  be  proved.  If,  however,  it  were  proved,  then  of 
course  tlie  result  would  be  that  the  vendees  must  incur  costs ;  and 
it  seems  to  me  that  such  costs  would  under  the  circumstances 
come  within  the  second  branch  of  the  rule  in  Hadley  v.  Baxen- 
dale. 

It  has  been  argued  that,  upon  the  true  construction  of  the 
T'nle  in  that  case,  such  costs  cannot  be  recoverable  as  the  result  of 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  289 

a  breach  of  contract,  unless  there  has  been  a  contract  of  ' '  indem- 
nity. ' '  The  meaning  of  that  term  has  been  much  discussed  dur- 
ing the  argument.  I  may  in  previous  cases,  in  which  the  ques- 
tion was  as  to  the  damages  incurred  by  reason  of  the  breach  of  a 
contract,  where  there  was  a  sub-contract,  have  used  expressions  to 
the  effect  that,  where  the  special  circumstances  were  known  to  the 
original  vendor,  the  law  would  imply  a  contract  to  indemnify.  I 
do  not  feel  sure,  having  regard  to  the  language  used  by  Willes, 
J.,  in  Collen  v.  Wright,  8  E.  &  B.  657,  that  the  obligation  implied 
by  the  law  under  such  circumstances  as  those  with  which  we  are 
now  dealing  might  not  be  correctly  expressed  by  that  formula; 
but  I  purposely  abstain  from  so  deciding.  I  do  not  think  it  neces- 
sary to  put  the  case  on  that  footing,  inasmuch  as  the  way  in  which 
I  have  put  it,  by  applying  the  rule  in  Hadley  v.  Baxendale,  viz., 
that  the  question  is  whether  the  damages  claimed  may  reasonably 
be  supposed  to  have  been  within  the  contemplation  of  the  parties 
at  the  time  when  they  made  the  contract,  seems  to  be  another  and 
perhaps  a  better  way  of  expressing  it.  For  the  purpose  of  sub- 
stantiating the  argument  that  there  must  be  a  contract  to  in- 
demnify, express  or  implied,  in  order  to  enable  costs  such  as 
these  to  be  recovered  as  damages,  expressions  used  in  previous 
cases  have  been  referred  to.  The  language  used  by  me  in  the  case 
of  Grebert-Borgnis  v.  Nugent,  15  Q.  B.  D.  85,  has  been  relied 
upon  for  the  defendant.  But  that  language  must  be  read  in  con- 
nection with  the  subject-matter.  I  was  there  giving  an  account 
of  the  circumstances  of  that  case,  as  I  have  given  an  account  of 
the  circumstances  of  this  case,  and  I  used  that  language  in  ex- 
pressing what  I  conceived  to  be  the  particular  circumstances  of 
that  case,  which  made  the  rule  in  Hadley  v.  Baxendale  applicable. 
It  seems  to  me  immaterial  whether  the  phraseology  I  used  in  so 
doing  was  exactly  accurate,  for,  if  the  circumstances  of  that  case 
did  come  within  that  rule,  it  comes  to  the  same  thing.  There 
was  nothing  said  by  me  in  that  case  which  really  adds  anything 
to  or  takes  anything  from  the  rule  enunciated  in  Hadley  v.  Bax- 
endale as  applicable  to  a  case  like  the  present.  The  case  of  Bir- 
mingham, &c..  Land  Co.  v.  London  and  North-Western  Railway 
Co.,  34  Ch.  D.  261,  was  referred  to  for  the  same  purpose.  It  is 
only  necessary  to  say  with  regard  to  that  case  that  the  court  was 
not  there  construing  the  rule  as  to  damages  laid  down  in  Had- 
ley V.  Baxendale,  but  the  provisions  of  Order  XVI.,  rule  48,  with 
regard  to  the  question  Avhether  the  third  party  procedure  was  ap- 

19 


290  DAMAGES   IN    ACTIONS   ON    CONTRACTS, 

plicable.  It  does  not  seem  to  me  that  such  a  ease  has  any  bear- 
ing upon  the  present  question.  There  are  cases  which  would, 
no  doubt,  be  authorities  on  the  question  before  us  but  for  the 
fact  that  they  were  decided  prior  to  Hadley  v.  Baxendale.  Lewis 
V.  Peake,  7  Taunt,  153,  is  such  a  case,  but  I  do  not  think  such 
decisions  are  now  of  any  use.  It  seems  to  me  that  the  case  of 
Collen  V.  Wright,  8  E.  »&  B.  647,  is  really  a  strong  authority  with 
regard  to  the  question  now  before  us,  though  of  course  the  court 
were  not  there  dealing  especially  with  the  rule  as  to  measure  of 
damages.  Then  I  come  to  the  case  of  Baxendale  v.  London, 
Chatham,  and  Dover  Ry.  Co.,  Law  Rep.  10  Ex.  35.  If  I  thought 
that  that  case  had  decided  that,  however  reasonably  it  might 
be  supposed  that  the  parties  contemplated  that  there  would  be 
an  action  on  the  sub-contract  as  a  result  of  the  breach  of  con- 
tract, and  that  the  plaintiffs,  acting  as  reasonable  men,  would 
defend  that  action,  and  however  reasonable  the  incurring  of 
the  costs  might  be,  yet  those  costs  could  not  be  recovered  as  dam- 
ages, I  should  feel  bound  by  that  decision,  for  it  is  a  decision  of 
a  court  of  co-ordinate  jurisdiction.  And  I  must  admit  that  I 
have  felt  considerable  anxiety  as  to  whether  the  decision  does 
touch  the  point  now  before  us.  It  is  useless  to  discuss  at  length 
all  the  verbal  criticism  which  has  been  directed  during  the  argu- 
ment to  the  language  of  the  judgments  in  that  case.  I  must  con- 
fess to  feeling  some  difficulty  as  to  the  exact  effect  of  much  that 
was  said  in  those  judgments,  but  I  think  it  is  quite  clear  that 
what  the  court  did  in  effect  decide  was  that  the  costs  in  ques- 
tion were  not  reasonably  incurred  in  that  case,  and  therefore 
they  could  not  be  recovered.  The  case  therefore  decides  that, 
where  the  costs  are  unreasonably  incurred,  they  cannot  be  re- 
covered, but  it  is  not,  as  it  seems  to  me,  a  decision  that,  where 
the  costs  were  under  all  the  circumstances  reasonably  incurred, 
they  cannot  be  recovered.  I  then  come  to  the  case  of  Fisher  v. 
Val  de  Travers  Asphalt  Co.,  1  C.  P.  D.  511.  I  must  admit,  after 
the  discussion  that  has  now  taken  place,  that  I  doubt  whether, 
when  that  case  came  before  the  court,  I  did  quite  correctly  ap- 
preciate what  was  decided  and  what  was  not  in  the  case  of  Baxen- 
dale V.  London,  Chatham,  and  Dover  Ry.  Co.,  supra.  Assuming 
that  I  did  not  in  that  case  take  an  altogether  correct  view  of  the 
decision  in  Baxendale  v.  London,  Chatham,  and  Dover  Railway 
Co.,  and  therefore  gave  a  wrong  reason  for  the  decision  there, 
that  could  have  no  effect  upon  the  true  meaning  of  the  previous 


CONTRACTS    RELATING    TO   PERSONAL   PROPERTY.  291 

decision ;  and  it  by  no  means  follows  that,  because  a  reason  given 
for  the  decision  in  Fisher  v.  Val  de  Travers  Asphalt  Co.  was 
wrong,  that  therefore  the  decision  itself  was  wrong.  It  is  un- 
necessary, however,  now  to  discuss  that  question.  It  does  not 
seem  to  me  that  there  is  really  any  case  which  alters  the  rule  as 
laid  down  in  Hadley  v.  Baxendale,  or  which  prevents  our  ap- 
plying that  rule  in  the  terms  in  which  it  stands  in  the  judgment 
there  given  as  I  have  applied  it  to  the  present  case.  To  my  mind 
it  is  perfectly  clear  that,  according  to  a  reasonable  business  view 
of  the  reasonably  probable  course  of  business,  the  parties  may 
be  supposed  to  have  contemplated,  at  the  time  when  the  con- 
tract was  made,  as  the  inevitable  or  at  any  rate  the  highly 
probable  result  of  a  breach  of  it,  that  there  would  be  a  lawsuit 
between  the  plaintiffs  and  their  subvendees,  in  which  it  would 
be  reasonable  for  the  plaintiffs  to  defend,  and  in  which,  if  it 
turned  out  that  there  was  a  breach  of  the  warranty,  the  plain- 
tiffs would  lose,  and  that  they  would  thereby  necessarily  incur 
costs.  Costs  incurred  under  such  circumstances  appear  to  me 
to  fall  within  the  second  branch  of  the  rule  in  Hadley  v.  Baxen- 
dale. I  therefore  think  that  the  plaintiffs  were  entitled  to  re- 
cover over  from  the  defendant  in  respect  of  their  costs,  and  that 
the  decision  of  the  learned  judge  below  was  right,  and  should 
be  affirmed. 

BowEN,  L.  J.,  and  Fry,  L.  J.,  wrote  concurring  opinions. 


PARK  V.  RICHARDSON 

Wisconsin,  3895.    91  Wis.  189. 

Appeal  from  a  judgment  of  the  circuit  court. 

The  plaintiffs  bought  of  the  defendant  a  furnace  for  heating 
their  building.  The  furnace  was  warranted  to  work  satis- 
factorily. It  did  not  work  satisfactorily.  The  plaintiffs  brought 
this  action  for  a  breach  of  warranty.  The  court  instructed  the 
jury  that,  in  case  they  found  for  the  plaintiffs,  "the  plaintiffs 
will  be  entitled  to  recover  the  difference  between  the  purchase 
price  of  the  furnace     *     *     *     and  its  actual  value. 

Newman,  J.  When  this  ease  was  here  before  (81  Wis.  399), 
it  was  said  that  the  proper  rule  of  damages  for  breach  of  the 
warranty  of  the  furnace  would  be  "the  difference  between  its 
actual  value  and  its  value  had  it  conformed  with  the  warranty." 
This   is   undoubtedly   the   true    rule.      Suth.    Dam.    (2d    Ed.) 


292  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

§  670 ;  :Morse  v.  Ilutchins,  102  lAlass.  4-40.  The  rule  stated  by  the 
trial  court  is  not  the  equivalent  of  the  true  rule.  The  inile  of 
the  trial  court  deprives  the  purchaser  of  the  profit  of  his  bar- 
gain, if  he  has  made  a  good  one,  and  gives  him  an  undue  advan- 
tage, if  he  has  made  a  bad  one.  The  furnace  may  have  been 
either  cheap  or  dear,  at  the  price  paid,  even  if  it  had  conformed 
to  the  w^arranty.  If  it  was  a  bad  bargain,  aside  from  the  de- 
fects complained  of,  the  plaintiffs'  damages  are  less  than  if  it 
had  been  a  good  bargain.  This  consideration  is  an  element  in 
the  rule  of  damages.  The  question  of  the  value  of  the  furnace, 
if  it  had  conformed  to  the  warranty,  should  have  been  left  to  the 
jury,  as  well  as  the  question  of  its  actual  value.  The  defendant 
may  have  suffered  by  the  error.  Reversed. 


HENDRICKSON  v.  BACK. 

Minnesota,  1898.     74  Minn.  90. 

Collins,  j.  *  *  *  The  question,  which  from  the  order 
and  the  briefs,  we  suppose  is  in  controversy,  is  what  is  the  meas- 
ure of  damages  where  there  has  been  a  breach  of  an  implied  war- 
ranty against  incumbrances  on  personal  property,  and  the  ven- 
dee has  been  deprived  of  such  property  by  an  assertion  of  the 
paramount  title  or  right,— in  this  instance,  by  the  foreclosure 
of  a  mortgage  ?  From  the  order  it  seems  that  the  charge  to  the 
jury  was  that  the  vendee  was  entitled  to  recover  as  damages  the 
value  of  the  property  when  it  was  taken  from  him,  and  dam- 
ages were  awarded  on  this  basis,  and  that  in  passing  upon  the 
motion  the  court  held  its  charge  to  have  been  erroneous,  and 
that  it  should  have  stated  that  the  vendee's  damages  were  the 
price  paid  for  the  chattel. 

Unless  we  are  to  lose  sight  of  the  cardinal  principle  which 
governs  when  estimating  and  awarding  damages  in  civil  actions, 
which  is  simply  compensation  to  the  injured  party,  the  court  was 
right  in  its  charge,  and  wrong  when  it  concluded  that  an  error 
had  been  committed.  It  was  held  in  Close  v.  Crossland,  47 
]\Iirm.  500,  in  a  case  involving  this  very  question,  that  the  dam- 
ages are  the  actual  loss,  which  is  the  value  of  the  chattel  pur- 
chased. Of  course,  there  might  be  circumstances  which  would 
affect  any  particular  case.  Under  the  rule  established  by  the 
granting  of  the  motion,  the  damages  actually  sustained  might 
be  more  or  might  be  less  than  the  recovery,  depending  on  the 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  293 

real  value  of  the  chattel  when  the  paramount  title  was  asserted 
as  against  the  vendee ;  that  is,  whether  the  real  value  was  more 
or  less  than  the  price  paid.  A  good  illustration  of  this  is  found 
in  the  present  case. 

Defendant  purchased  in  1892,  agreeing  to  pay  $75  for  the 
harvester  and  binder  in  question.  He  gave  his  note  for  this  sum 
to  his  vendor,  plaintiff 's  intestate,  and  the  note  in  suit  was  given 
in  renewal  in  1894.  The  machine  was  mortgaged,  but  no  claim 
for  possession  was  asserted  until  1895,  and  it  was  then  worth  but 
$25.  Defendant  had  the  possession  and  the  use  for  three  years, 
during  which  time  the  property  would  materially  decrease  in 
value.  His  actual  loss  when  the  paramount  title  or  right  was 
asserted  was  the  value  of  the  property  when  taken  away  from 
him,  and  his  loss  would  have  been  the  same  if  he  had  bought 
the  machine  for  $10  in  1892     *     *     * 

In  conclusion,  we  observe  that  the  rule  above  stated  as  the 
true  one  is  in  harmony  with  those  applied  where  there  has  been 
a  breach  of  warranty  of  quality,  or  where  delivery  of  goods  pur- 
chased has  been  refused.  Order  affirmed. 


BOSTOCK  V.  NICHOLSON. 

L.  R.  1  K.  B.  1904,  725. 

Action  to  recover  damages  for  fraudulent  misrepresentation 
and  breach  of  contract  on  sale  of  sulphuric  acid  commercially 
free  from  arsenic. 

The  case  came  on  for  further  consideration  as  to  the  damages 
recoverable  from  the  defendants. 

Damages  were  claimed  under  the  following  heads : — 

1.  The  price  paid  for  the  acid  supplied  which  contained 
arsenic,  which  was  worthless  to  the  plaintiffs. 

2.  The  value  of  material  used  for  the  purpose  of  making 
glucose  and  invert  which  was  spoilt  by  being  mixed  with  acid 
containing  arsenic. 

3.  Compensation  for  the  loss  of  the  goodwill  of  the  plain- 
tiffs' business. 

4.  The  damages  which  the  plaintiffs  were  liable  to  pay  to  the 
brewers  who  had  been  supplied  by  the  plaintiffs  with  glucose 
and  invert  made  out  of  acid  containing  arsenic. 

Bruce,  J.,  read  the  following  judgment: — The  judgmental- 


294  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

ready  delivered  found  that  there  was  a  contract  for  the  sale 
of  goods  by  description  within  s.  13  of  the  Sale  of  Goods  Act, 
1S93 — that  is,  a  sale  of  B.  0.  V,  commercially  free  from  arsenic, 
and  that  there  was  an  implied  condition  that  the  goods  supplied 
should  correspond  with  that  description;  and  when  the  defend- 
ants, in  JNIarch,  1900,  delivered  B.  O.  V.  which  was  not  com- 
mercially free  from  arsenic,  there  was  a  breach  of  the  implied 
condition.  It  was  further  found  by  the  judgment  that  the  buyer 
did  not  expressly,  or  by  implication,  make  known  to  the  seller 
the  particular  purpose  for  which  the  goods  were  required,  so 
as  to  bring  into  operation  sub-s.  1  of  s.  14  of  the  Sale  of  Goods 
Act.  The  question  now  arises,  what  are  the  damages  which  the 
plaintiffs  are  entitled  to  recover  against  the  defendants?  The 
plaintiffs  claim,  first,  the  price  paid  for  the  acid  supplied,  which 
was  not  commercially  free  from  arsenic.  They  say  that  the 
acid  was  worse  than  useless  to  them,  and  that  the  price  paid  for 
it  was  wholly  thrown  away.  Secondly,  the  plaintiffs  claim  the 
value  of  the  material  used  for  the  purpose  of  making  glucose  and 
invert,  which  was  spoilt  by  its  being  mixed  with  acid  which 
proved  to  be  poisonous  at  a  time  when  the  plaintiffs  supposed 
the  acid  to  be  commercially  free  from  arsenic.  Thirdly,  the 
plaintiffs  claim  a  large  sum  of  money  as  compensation  for  the 
goodwill  of  the  business  which  the  plaintiffs  carried  on  as  manu- 
facturers of  invert  and  glucose,  and  which  the  plaintiffs  say  has 
been  entirely  destroyed  by  the  act  of  the  defendants  in  supply- 
ing them  with  poisonous  acid.  Fourthly,  the  plaintiffs,  before 
they  discovered  the  poisonous  properties  of  the  acid,  sold  to 
brewers,  for  the  purpose  of  being  used  in  the  brewing  of  beer, 
invert  and  glucose  made  from  the  poisonous  acid,  and  they 
claim  from  the  defendants  the  amount  of  damages  which  the 
brewers  are  entitled  to  recover  against  them. 

In  order  to  arrive  at  the  damages  which  the  plaintiffs  are 
entitled  to  recover,  we  must  consider  the  provisions  of  the  Sale 
of  Goods  Act,  1893.  Sect.  11,  sub-s.  1  (a),  enacts  that  where  a 
contract  of  sale  is  subject  to  any  condition  to  be  fulfilled  by 
the  seller,  the  buyer  may  waive  the  condition,  or  may  elect  to 
treat  the  breach  of  such  condition  as  a  breach  of  warranty.  In 
the  present  case  the  plaintiffs,  the  buyers,  accepted  the  acid  in 
ignorance  that  it  did  not  fulfil  the  condition  that  it  was  com- 
mercially free  from  arsenic.  Had  they  known  of  the  breach 
of  condition,  they  might  have  refused  to  accept  the  goods;  but 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  295 

having  accepted  the  goods  in  ignorance  of  the  breach  of  con- 
dition, I  think  the  case  is  one  to  which  s.  11,  sub-s.  1  (e),  applies. 
That  sub-section  enacts  that  where  the  property  has  passed  to 
the  buyer  the  breach  of  any  condition  to  be  fulfilled  by  the 
seller  can  only  be  treated  as  a  breach  of  warranty  in  the  absence 
of  a  special  term  to  the  contrary.     Sect.  53,  sub-s.  1,  enacts 
that  where  the  buyer  is  compelled  to  treat  any  breach  of  a 
condition  on  the  part  of  the  seller  as  breach  of  warranty  the 
buyer  may  (b)  maintain  an  action  for  damages  for  the  breach 
of  warranty.     Sub-sect.  2  enacts  that  the  measure  of  damages 
for  breach  of  warranty  is  the  estimated  loss  indirectly  and  nat- 
urally resulting,   in  the  ordinary  course   of  events,   from  the 
breach  of  warranty.     Sub-s.  3  of  s.  53,  which  relates  only  to  a 
breach  of  warranty  of  quality,  has  I  think,  no  bearing  in  the 
present  case.    Nichol  v.  Godts,  10  Ex.  191,  and  Josling  v.  Kings- 
ford,  13  C.  B.,  (N.  S.)  447,  illustrate  the  distinction  between  a 
mere  warranty  of  quality  and  a  condition  that  the  goods  shall 
correspond   with  the  description.      Although  in  circumstances 
such  as  have  happened  in  this  case  the   buyer  is  compelled  to 
treat  the  breach  of  the  condition  as  a  breach  of  warranty,  yet  in 
point  of  fact  the  damages  for  such  breach  of  warranty  are  differ- 
ent from  the  damages  which  follow  from  a  mere  breach  of  war- 
ranty of  quality. 

The  damages  in  the  present  case  must,  I  think,  be  determined 
by  the  nile  laid  down  in  s.  53,  sub-s.  2.  Before  I  proceed  to  con- 
sider the  meaning  and  application  of  this  sub-section,  I  may 
refer  to  s.  54,  which  enacts  that  nothing  in  this  Act  shall  affect 
the  right  of  the  buyer  or  the  seller  to  recover  interest  or  special 
damages  in  any  case  where  by  law  interest  or  special  damages 
may  be  recoverable.  These  two  sections  seem  to  be  framed  upon 
the  rules  laid  down  in  Hadley  v.  Baxendale,  9  Ex.  at  p.  354. 
(The  learned  Court  here  reviews  the  authorities). 
In  my  opinion  the  plaintiffs  are  entitled  to  recover,  first,  the 
whole  price  paid  by  them  for  the  impure  acid,  because  the  acid 
being  worthless  to  the  plaintiffs  there  was  an  entire  failure  of 
consideration,  and  by  virtue  of  s.  53,  sub-s.  1  (a).  Sale  of  Goods 
Act,  where  there  is  a  breach  of  warranty  by  the  seller,  the  buyer 
may  set  up  against  the  seller  the  breach  of  warranty  in  extinction 
of  the  price:  see  Poulton  v.  Lattimore,  (1829)  9  B.  &  C.  259;  32 
R.  R.  673.  Second,  the  value  of  the  goods  that  were  rendered 
useless   by    being  mixed  with  the  poisonous   acid   at     a  time 


L**JU  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

v.hen  the  plaintiffs  were  igiiorani  of  the  poisonous  character  of 
the  acid.  That,  I  think,  is  a  loss  directly  Jind  naturally  resulting 
in  the  ordinary  course  of  events  from  the  breach  of  warranty. 

The  claim  of  the  plaintiffs  for  the  loss  of  the  goodwill  of  their 
business  is  not,  I  think,  recoverable.  It  does  not  seem  to  me  to 
be  a  loss  directly  and  naturally  resulting  in  the  ordinary  course 
of  events  from  the  breach  of  warranty.  It  did  not  arise  directly 
from  the  act  of  the  defendants,  but  arose  from  the  act  of  the 
plaintiffs  in  selling  the  poisonous  glucose  and  invert  to  brewers 
for  use  in  the  brewing  of  beer.  The  poisonous  glucose  and  invert 
were  not  supplied  by  the  defendants  to  the  plaintiffs,  but  were 
manufactured  by  the  plaintiffs ;  the  damage  to  their  credit  arose, 
not  directly  from  any  act  of  the  defendants,  but  arose  from  the 
act  of  the  plaintiffs  in  manufacturing  glucose  and  invert  by 
means  of  poisonous  acid,  and  selling  the  glucose  and  invert  so 
made  as  fit  to  be  used  in  the  brewing  of  beer.  In  Randall  v. 
Raper,  E.  B.  &  E.  84,  there  was  an  allegation  in  the  declaration 
that  the  plaintiffs  had  been  and  were  by  means  of  the  premises 
injured  in  their  credit,  in  their  said  trade,  and  otherwise,  and 
had  been  and  were  otherwise  injured.  And  no  doubt  in  point 
of  fact  the  selling  of  inferior  barley  would  tend  to  injure  the 
credit  of  the  plaintiffs  in  their  trade  as  corn-factors,  yet  no  one 
seems  to  have  contended  that  the  damages  under  that  head  were 
recoverable.  So  in  Fitzgerald  v.  Leonard,  L.  R.  Ir.  32  C.  L.  675, 
it  was  held  that  damages  for  loss  of  trade  could  not  be  recovered. 

Further,  I  think  that  the  plaintiffs  are  not  entitled  to  re- 
cover against  the  defendants  the  sums  which  the  brewers  to  whom 
the  plaintiffs  sold  the  glucose  and  invert  made  from  the  poisonous 
acid  are  entitled  to  recover  against  them.  I  think  the  rule  is 
correctly  laid  down  in  Smith's  Leading  Cases  in  the  note  to 
Vicars  v.  Wilcocks,  2  Sm.  L.  C.  11th  ed.  p.  521,  that  no  liability 
is  incurred  in  the  ordinary  case  of  a  separate  and  distinct  col- 
lateral contract  with  a  third  person  uncommunicated  to  the  orig- 
inal contractor  or  wrong-doer  although  the  non-performance  of 
this  contract  may  in  one  sense  have  resulted  from  the  original 
wrongful  act  or  breach  of  contract.  In  my  opinion  there  are 
no  special  circumstances  to  entitle  the  plaintiffs  to  claim 
special  damages  under  s.  54  of  the  Sale  of  Goods  Act. 

The  damages,  therefore,  will  be  confined  to  the  two  items  I 
have  mentioned — (1)   the  price  paid  for  the  impure  acid;   (2) 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  297 

value  of  the  goods  spoilt  by  being  mixed  with  the  impure  acid. 
I  have  not  gone  into  the  figures,  but  I  understand  they  can  easily 
be  agreed  upon. 

Judgment  for  the  plaintiffs. 


ISAACS  V.  WANAMAKER. 

New  York,   1908.     189  N.  Y.   122. 

Edward  T.  Bartlett.  J.  The  referee  found  that  on  the  26th 
day  of  July,  1904,  the  defendant  sold  to  the  plaintiflE  a  Search- 
mont  touring  car  with  certain  appurtenances;  that  at  the  time 
of  the  sale  the  plaintiff  paid  to  defendant  the  entire  purchase 
price  of  $1,200;  that  the  defendant  made  certain  representa- 
tions and  statements  to  plaintiff  in  respect  to  the  machine  be- 
fore the  purchase  thereof  which  constituted  a  warranty;  that 
the  defendant  was  guilty  of  a  breach  of  the  same  upon  which  the 
plaintiff  relied;  and  that  it  subsequently^  proved  to  be  untrue. 
It  is  further  found  that  upon  the  discovery  of  the  breach  of 
warranty  when  the  car  arrived  in  Niagara  Falls  plaintiff 
promptly  rescinded  the  contract,  and  offered  to  return  the  ma- 
chine and  appurtenances,  and  demanded  the  repayment  of  the 
purchase  price.  The  referee  held,  as  matter  of  law,  that  the 
plaintiff  had  properly  rescinded  the  contract  and  was  entitled 
to  recover  of  the  defendant  the  purchase  price  of  $1,200  and  in- 
terest, and  the  further  sum  of  $31.20,  with  interest,  being  the 
amount  of  freight  paid  for  transporting  said  car  from  the  city 
of  Philadelphia,  where  it  was  purchased,  to  the  city  of  Niagara 
Falls,  where  the  plaintiff  resides. 

The  plaintiff's  damages  were  awarded  on  a  wrong  theory,  and 
the  judgment  must  be  reversed.  The  action  is  based  upon  an 
alleged  rescission  of  the  contract,  and  the  right  of  the  plaintiff 
to  recover  the  purchase  price  as  such,  and  certain  freight  charges. 
The  findings  present  a  contract  of  sale,  fully  executed,  accom- 
panied by  an  express  warranty.  It  has  long  been  the  settled  law 
of  this  state  that,  where  an  article  is  delivered  to  the  purchaser 
with  an  express  warranty,  the  measure  of  the  purchaser's  dam- 
ages on  the  breach  thereof  is  the  difference  between  the  value 
of  the  article  if  it  had  been  as  warranted  and  actual  value. 
Yoorhees  v.  Earl,  2.  Hill,  228;  Gary  v.  Gruman,  4  Hill,  625; 
IMuller  V.  Eno,  14  N.  Y.  597;  Rust  v.  Eckler,  41  N.  Y.  488. 
The  defendant  is  entitled  to  litigate  the  questions  of  breach  of 


298  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

warranty  and  the  value  of  the  article  sold  and  delivered,  even 
if  it  were  proved  that  there  had  been  a  breach. 

The  judgments  of  the  Special  Term  and  Appellate  Division 
should  be  reversed,  and  a  new  trial  ordered,  with  costs  to  abide 
the  event. 

CuLLEN,  C.  J.,  and  Gray,  Haight,  Vann,Willard  Bartlett, 
and  HiscocK,  JJ.,  concur.  Judgment  reversed. 


(2)     Breach  of  Vendee. 

GANSON  V.  MADIGAN. 
Wisconsin,  1862.    15  Wis.  158. 

Appeal  from  circuit  court,  Dodge  county. 

Action  by  Ganson,  Huntley  &  Co.  against  one  Madigan  to  re- 
cover for  the  price  of  a  reaping  machine  alleged  to  have  been  de- 
livered on  his  written  order.  In  giving  instructions  to  the  jury, 
the  judge  said:  *  *  *  If  you  find  that  the  plaintiffs  did 
deliver  a  machine  according  to  agreement,  then  they  are  en- 
titled to  recover  whatever  damages  they  have  sustained  by  the 
defendant's  refusal  to  receive.  The  rule  of  damages  is  the  dif- 
ference between  the  contract  price  and  the  actual  value  of  the 
reaper  on  the  1st  of  July,  1855,  the  day  specified  for  the  de- 
livery, together  with  any  expenses  incurred  by  the  plaintiff." 

The  rights  and  liabilities  of  the  parties  under  the  contract 
were,  in  substance,  these:  The  plaintiffs  were  bound  to  man- 
ufacture and  deliver  the  machine  in  the  manner  specified,  at  the 
city  of  Milwaukee,  on  or  before  the  first  day  of  July.  The  de- 
fendant was  bound,  on  the  same  day  (or  before,  if  notified  of 
its  earlier  delivery,  and  he  chose  to  do  so) ,  to  be  present  to  receive 
it,  and  pay  the  fifty  dollars  and  the  storage.  The  obligation  of 
the  plaintiffs  to  manufacture  and  deliver,  and  that  of  the  de- 
fendant to  be  present  and  receive  and  pay,  were  mutual  and 
concurrent.  The  presence  of  both  parties,  by  themselves  or 
agents,  at  the  time  and  place  designated,  was  necessarily  con- 
templated, since  the  obligations  resting  upon  them  respectively 
could  not  otherwise  be  discharged.  The  plaintiffs,  if  they  had 
manufactured  and  furnished  ready  for  delivery  by  their  agents 
at  Milwaukee,  such  a  machine  as  the  contract  called  for,  would 
have  so  far  performed  the  duty  imposed  upon  them  as  to  be 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  299 

entitled  to  damages  for  the  defendant's  violation  of  duty  in 
neglecting  to  be  present,  accept  and  pay  the  sums  stipulated.  For 
this  purpose  it  was  not  necessary  for  them  to  set  apart  the  ma- 
chine so  as  to  vest  the  title  in  him  subject  to  their  lien  for  the 
purchase  money  and  charges.  Having  manufactured  and  for- 
warded the  machine  upon  the  faith  of  his  promise  to  receive  and 
pay  for  it,  it  would  be  most  unreasonable  and  unjust  to  say  that 
they  should  not  have  compensation  for  any  actual  loss  or  ex- 
pense which  they  had  thus  incurred.  The  defendant,  by  his  fail- 
ure to  appear  and  perform  the  contract  on  his  part,  would  have 
been  in  no  situation  to  insist  upon  an  actual  delivery  or  sepa- 
ration of  the  machine.  Delivery  and  payment  were  concurrent 
acts,  the  one  dependent  on- the  performance  of  the  other,  and  the 
neglect  of  the  latter  effectually  excused  the  former.  It  would 
have  been  enough  to  have  enabled  the  plaintiffs  to  recover  their 
actual  loss  and  expenses,  if  they  had  shown  that  they  were  ready 
and  willing  to  perform  the  contract  on  their  part.  Chitty  on 
Con.,  633.  As  stated  by  Mr.  Parsons  (2  Parsons  on  Con.,  484,) 
they  had  under  the  cii'cumstances,  three  courses  open  to  them ;  to 
consider  the  machine  as  their  own  (which  they  did,  by  not  set- 
ting it  apart,  so  as  to  constitute  a  delivery),  and  sue  for  the  dam- 
ages occasioned  by  the  non-acceptance;  or  to  consider  it  as  the 
defendant's  (which  they  might  have  done,  by  separating  it  from 
the  others  so  as  to  be  capable  of  identification),  and  sell  it,  with 
due  precaution,  to  satisfy  their  lien  on  it  for  the  price,  and  then 
sue  and  recover  only  for  the  unpaid  balance  of  the  price ;  or  in 
the  latter  case,  also,  to  hold  it  subject  to  defendant's  call  or  or- 
der, and  then  recover  the  whole  price  which  he  agreed  to  pay. 
"We  deem  these  principles  to  be  sound  and  well  supported  by 
the  authorities,  and  are  willing  to  stand  by  them.  The  rule  of 
damages  given  by  the  court  below  was  therefore  correct,  and 
the  judge  was  right  in  refusing  the  instruction  asked  by  the  ap- 
pellants on  that  subject. 

The  case  is  clearly  distinguishable  from  those  in  which  the 
counsel  suppose  a  different  rule  was  established.  They  will  all  be 
found,  on  examination,  to  have  been  cases  where  the  articles  pur- 
chased or  manufa(!tured  were,  from  their  nature,  susceptible  of 
being  distinctly  known  and  identified,  or  where  they  were  set 
apart  by  the  vendors,  so  that  the  vendees,  on  paying  the  price, 
could  receive  and  dispose  of  them  if  they  desired.  Such  was  the 
case  of  the  wood  work  of  the  wagon,  in  Crookshank  v.  Burrell.  18 


oOO  DAMAGES    IN    ACTiONS    ON    CONTRACTS. 

Johns.,  58 ;  the  carriage,  in  Mixer  v.  Ilowarth,  21  Pick.,  205 ;  the 
sulky,  in  Bciuent  v.  Smith,  15  Wend.,  4*J3;  and  the  promissory 
note,  in  Des  Arts  v.  Leggett,  16  N.  Y.,  582.  As  was  decided  in 
the  hist  case,  the  vendor,  choosing  to  go  for  the  price,  becomes, 
after  a  valid  tender  of  the  chattel  in  performance  of  the  con- 
tract, a  bailee  for  the  vendee.  But  we  know  of  no  principle  of 
law  which  would  allow  the  vendor  to  keep  the  goods  as  his  own, 
and  at  the  same  time  come  upon  the  vendee  for  the  price — com- 
pel the  latter  to  pay  for,  and  yet  not  get  the  property;  which 
would  be  the  case  were  the  present  plaintiffs  to  be  permitted  to 
recover  the  price  irrespective  of  the  amount  of  damages  which 
they  had  sustained  in  consequence  of  the  defendant 's  nonaccept- 
anee.  The  machine  here  was  brought  to  Milwaukee  in  pieces, 
its  several  parts  separated  and  packed  with  those  of  a  great  num- 
ber of  other  machines  of  identical  form  and  pattern,  so  that 
the  same  part  of  one  machine  was  equally  suited  to  every  other. 
It  remained  in  this  condition  until  after  the  day  fixed  for  its 
delivery  and  acceptance.  It  is  idle,  therefore,  to  talk  about  there 
having  been  such  a  delivery  as  would  have  vested  the  title  in  the 
defendant,  provided  the  jury  had  found  that  the  machine  was 
such  as  the  contract  called  for.  The  property  in  all  the  ma- 
chines remained  in  the  plaintiffs,  subject  to  their  absolute  domin- 
ion and  right  of  disposal.  Nothing  could  have  changed  it  as  to 
the  defendant,  short  of  a  separation  or  distinct  ascertainment, 
by  mark  or  otherwise,  of  the  machine  intended  for  him,  so  that 
he  could  afterwards,  on  paying  the  price,  have  obtained  it  if  he 
chose.     *     *     * 

The  jury,  upon  proper  evidence  and  under  proper  instruc- 
tions, having  found  that  the  machine  delivered  at  Milwaukee 
was  not  such  as  the  contract  called  for,  the  judgment  upon  their 
verdict  must  be  affirmed. 

Ordered  accordingly. 


DUSTAN  V.  McANDREW. 

New  York.  1870.       44  N.  Y.  72. 

Action  for  breach  of  contract,  for  refusal  to  take  100,000 
pounds  of  hops  according  to  contract.  At  the  trial  it  was  shown 
that  the  hops  in  all  respects  answered  the  contract. 

On  August  24,  I860,  J.  S.  &  W.  Bro^^^l  of  New  York  executed 
the  following  agreement  with  the  plaintiff: 


CONTRACTS    RELATING   TO   PERSONAL   PROPERTY.  301 

''In  consideration  of  the  sum  of  one  dollar,  the  receipt  of 
which  is  hereby  acknowledged,  we  have  sold  this  day  to  Mr. 
Jolin  F.  Dustan,  of  this  city,  100,000  pounds  of  first  sort  western 
or  eastern  hops,  as  we  may  select ;  growth  of  1860 ;  deliverable  in 
the  city  of  New  York,  at  our  option,  during  the  months  of 
October  or  November,  1860,  at  seventeen  cents  per  pound,  sub- 
ject to  Mr.  J.  S.  Brown's  inspection,  or  other  mutually  satisfac- 
tory. Terms,  cash  on  delivery.  Mr.  Dustan 's  name  to  be  made 
satisfactory  either  by  indorsement  or  by  a  deposit  of  $2,500  by 
both  parties. 

"J.  S.  &  W.  Brown." 

On  the  7th  of  September,  plaintiff  sold  this  contract  to  defend- 
ants under  the  following  instrument  in  writing: 

"In  consideration  of  the  sum  of  one  dollar,  the  receipt  of 
which  is  hereby  acknowledged,  I  have  this  day  sold  to  McAndrew 
&  Wann  the  contract  of  J.  S.  &  W.  Brown,  dated  24th  August, 
1860,  for  100,000  pounds  first  sort  hops,  western  or  eastern, 
gro^vth  of  1860 ;  upon  condition  that  the  said  McAndrew  &  AYann 
fulfill  the  conditions  of  said  contract  to  the  said  J.  S.  &  W. 
Brown,  and  pay  to  me,  in  addition,  on  delivery  of  the  hops,  ten 
and  one-half  cents  per  pound. 

"John  F.  Dustan." 

Prior  to  November  30,  John  S.  Brown  inspected  and  brand- 
ed the  hops  and  certified  that  they  conformed  to  the  contract. 
On  November  30,  J.  S.  &  W.  Brown  were  ready  and  willing  to  de- 
liver said  hops,  and  defendants  were  so  notified,  but  refused  to 
take  them,  because  they  had  not  had  an  opportunity  to  inspect 
them,  and  because  Messrs.  Brown  had  refused  to  let  defendants' 
inspector  inspect  the  hops.  On  December  24,  plaintiff  took  and 
paid  for  the  hops,  and  immediately  notified  the  defendants  the 
same  were  in  store  for  them  at  No.  4  Bridge  street;  that  unless 
they  complied  with  the  terms  of  the  contract  of  the  7th  of  Sep- 
tember on  or  before  December  26,  they  would  sell  the  same  on 
their  account  and  hold  them  for  any  deficiency.  Defendants  still 
declining  to  take  the  hops,  they  were  sold  at  a  fair  sale  for  tw^en- 
ty  cents  per  pound. 

Verdict  was  directed  for  plaintiff  for  $8,130  and  was  sustained 
by  the  General  Term  of  the  Superior  Court  of  the  city  of  New 
York,  and  defendants  appealed  to  this  court. 

Earl,  C.  The  contract  required  that  the  hops  should  be  in- 
spected by  J.  S.  Brown,  or  some  other  inspector  satisfactory  to 


302  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

both  parties.  In  case  J.  S.  Brown  could  not,  or  should  not  in- 
spect them  for  any  reason,  then  they  were  to  be  inspected  by 
some  other  person  mutually  satisfactory.  Neither  party  had  the 
right  to  demand  any  other  inspector,  unless  Brown  neglected  or 
refused  to  inspect.  It  is  doubtless  unusual  to  insert  a  stipulation 
in  contracts,  that  the  vendor  shall  inspect  the  goods  sold.  But 
where  parties  agree  to  this,  they  must  be  bound  by  their  con- 
tract, and  it  must  be  construed  the  same  as  if  some  other  person 
had  been  chosen  inspector. 

It  is  claimed  on  the  part  of  the  respondent,  and  was  held  by  the 
court  below,  that  the  inspection  provided  for  was  intended 
simply  for  the  convenience  of  the  vendors,  to  enable  them  to  per- 
form their  contract,  and  that  it  merely  furnished  prima  facie 
evidence  that  the  hops  answered  the  contract,  and  that  the  in- 
spection was  not  conclusive  upon  the  parties.  I  cannot  assent 
to  this.  The  contract  was  for  the  sale  and  purchase  of  hops  of 
a  certain  description,  and  the  object  of  the  inspection  was  to 
determine  for  the  benefit  of  both  parties,  whether  they  answered 
that  description.  Until  the  vendors  delivered  the  hops  with  the 
inspection,  the  vendee  was  not  obliged  to  pay,  and  when  so  de- 
livered, the  vendors  were  entitled  to  the  purchase  price.  The  in- 
spection was  thus  as  much  for  the  convenience  and  benefit  of  one 
party  as  the  other.  Its  purpose,  like  similar  provisions  in  a 
variety  of  contracts,  was  to  prevent  dispute  and  litigation  at,  and 
after  performance.  But  if  the  inspection  was  merely  for  the  con- 
venience of  the  vendors,  then  they '  could  dispense  with  it,  and 
compel  the  vendees  to  take  the  hops  without  any  inspection  what- 
ever. And  if  it  was  merely  prima  facie  evidence  of  the  quality  of 
the  hops,  then  it  was  an  idle  ceremony,  because,  not  being  bind- 
ing, the  vendee  could  still  dispute  the  quality  of  the  hops,  refuse 
to  take  them,  and  show,  if  he  could,  when  sued  for  not  taking 
them,  that  they  did  not  answer  the  requirements  of  the  contract ; 
and  thus  the  plain  purpose  for  which  the  provision  was  inserted 
in  the  contract  would  be  entirely  defeated. 

The  inspection  could  be  assailed  for  fraud,  or  bad  faith  in  mak- 
ing it,  and  perhaps  within  the  case  of  McMahon  v.  The  New  York 
&  Erie  Railroad  Co.,  20  N.  Y.  463,  because  made  without  notice  to 
the  vendee.  The  inspection  here  was  made  without  notice ;  but  it 
is  not  necessary  to  determine  whether  this  renders  it  invalid,  as 
no  such  defense  was  intimated  in  the  answer  or  upon  the  trial. 

By  the  purchase  of  the  contract  the  defendants  were  substi- 


CONTRACTS    RELATING    TO   PERSONAL   PROPERTY.  303 

tuted,  as  to  its  performance,  in  the  place  of  the  vendee  therein 
named,  and  were  boimd  to  do  all  that  he  had  agreed  to  do  or 
was  bound  in  law  to  do.  When  notified  that  the  hops  were  ready 
for  delivery  they  declined  to  take  them,  upon  the  sole  ground 
that  they  had  not  had  an  opportunity  to  examine  or  inspect 
them ;  and  they  claimed  that  they  had  sent  one  Smith  to  inspect 
them,  and  that  he  had  been  declined  permission  to  inspect  them. 
There  was  no  proof,  however,  that  they  ever  tried  to  examine  or 
inspect  the  hops,  or  that  the  vendors  ever  refused  to  permit  them 
to  examine  or  inspect  them.  They  sent  Smith  to  inspect  them, 
and  he  went  to  one  of  the  several  store-houses  where  some  of  the 
hops  were  stored,  and  he  says  he  was  there  refused  an  oppor- 
tunity to  inspect  them  by  Mr.  A.  A.  Brown.  But  there  is  no 
proof  that  he  was  in  any  way  connected  with  the  vendors,  or  that 
he  had  any  agency  or  authority  whatever  from  them.  There  was 
no  proof  that  defendants  ever  tried  with  the  vendors  to  agree 
upon  any  other  inspector,  or  that  they  ever  asked  the  vendors  to 
have  the  hops  inspected  by  any  other  inspector,  and  they  made  no 
complaint  at  any  time  that  they  were  inspected  without  notice 
to  them.  The  point  that  they  should  have  had  notice  of  the  in- 
spection was  not  taken  in  the  motion  for  a  nonsuit,  nor  in  any 
of  the  requests  to  the  court  to  charge  the  jury.  If  the  point 
had  been  taken  in  the  answer  or  on  the  trial,  the  plaintiff  might, 
perhaps,  have  shown  that  notice  was  given  by  the  vendors,  or 
that  it  was  waived. 

Hence  we  must  hold,  upon  the  case  as  presented  to  us,  that 
there  was  no  default  on  the  part  of  the  plaintiff  or  the  vendors, 
and  that  the  defendants  were  in  default  in  not  taking  and  pay- 
ing for  the  hops.  The  only  other  question  to  be  considered  is, 
whether  the  court  erred  in  the  rule  of  damages  adopted  in 
ordering  the  verdict. 

The  court  decided  that  the  plaintiff  was  entitled  to  recover  the 
difference  between  the  contract  price  and  the  price  obtained  by 
the  plaintiff  upon  the  resale  of  the  hops,  and  refused,  upon  the 
request  of  the  defendants,  to  submit  to  the  jury  the  question  as 
to  the  market  value  of  the  hops  on  or  about  the  30th  day  of  No- 
vember. 

The  vendor  of  personal  property  in  a  suit  against  the  vendee 
for  not  taking  and  paying  for  the  property,  has  the  choice  ordi- 
narily of  either  one  of  three  methods  to  indemnify  himself.  (1). 
He  may  store  or  retain  the  property  for  the  vendee,  and  sue  him 


304:  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

for  the  entire  purchase  price.  (2).  He  may  sell  the  property, 
acting  as  the  agent  for  this  purpose  of  the  vendee,  and  recover 
the  dift'erence  between  the  contract  price  and  the  price  obtained 
on  such  resale;  or  (3).  He  may  keep  the  property  as  his  own, 
and  recover  the  difference  between  the  market  price  at  the  time 
and  place  of  delivery,  and  the  contract  price.  (2  Parsons  on  Con. 
484 ;  Sedgwick  on  Dams.  282 ;  Lewis  v.  Greider,  49  Barb.  606 ; 
Pollen  V.  LeRoy,  30  N.  Y.  549.)  In  this  case  the  plaintiff  chose 
and  the  court  applied  the  second  rule  above  mentioned.  In  such 
ease,  the  vendor  is  treated  as  the  agent  of  the  vendee  to  make 
the  sale,  and  all  that  is  required  of  him  is,  that  he  should  act 
with  reasonable  care  and  diligence,  and  in  good  faith.  He 
should  make  the  sale  without  unnecessary  delay,  but  he  must 
be  the  judge  as  to  the  time  and  place  of  sale,  provided  he  act 
in  good  faith  and  with  reasonable  care  and  diligence.  Here  it 
is  conceded  that  the  sale  was  fairly  made ;  it  was  made  in  the 
city  of  New  York,  in  less  than  one  month  from  the  time  the  de- 
fendants refused  to  take  the  hops.  It  was  not  claimed  on  the 
trial  that  the  delay  was  unreasonable  and  we  can  find  nothing  in 
the  case  to  authorize  us  to  hold  that  it  was  unjustifiable.  We  are, 
therefore,  of  the  opinion,  that  the  court  did  not  err  as  to  the  rule 
of  damages. 

The  judgment  should  therefore  be  affirmed  with  costs. 

For  affirmance,  Lott,  Ch.  C,  Earl  and  Hunt,  CC.  Gray,  C, 
was  for  reversal,  on  the  ground  that  the  delay  in  selling  was  too 
great. 

Leonard,  C,  did  not  vote. 

Judgment  affirmed  with  costs. 


BRIDGFORD  v.  CROCKER. 

New  York,  1875.       60  N.  Y.  627. 

Action  by  James  Bridgford  against  Lemuel  L.  Crocker  to  re- 
cover damages  for  the  refusal  of  one  Gavin  to  receive  certain  cat- 
tle which  plaintiff  claimed  he  had  purchased  as  agent,  and  to  re- 
cover also  the  amount  of  a  check  drawn  in  favor  of  Gavin,  and 
by  him  indorsed  to  plaintiff,  in  payment  for  certain  other  cattle 
delivered  by  plaintiff  to  said  Gavin,  and  received  by  him.  Plain- 
tiff held  the  cattle  which  Gavin  had  refused  to  receive  until  the 
following  spring,  when  he  sold  them  at  an  advanced  price,  and 


CONTRACTS    RELATING    TO    PERSONAL    PROPERTY.  305 

defendant  claims  the  benefit  of  such  sale.    There  was  a  judgment 
in  favor  of  plaintiff,  and  defendant  appeals. 

Grover,  J.  The  questions  raised  upon  this  appeal  by  the  coun- 
sel for  the  appellant  arise  upon  the  defense  sought  to  be  made 
against  his  liability  to  the  plaintiff  as  drawer  of  the  cheek  upon 
which  the  action  was  brought.  The  case  shows  that  the  check  in 
suit  was  one  of  a  large  number  made  bv  the  drawers  in  the  spring 
and  summer  of  1867,  amounting  in  all  to  $50,000,  payable  to  the 
order  of  Gavin,  which  during  the  spring  and  summer  were  de- 
livered by  the  drawers  to  Gavin,  upon  an  agreement,  as  they 
claimed,  that  he  should  use  them  in  the  west  in  the  purchase  of 
stock  by  him  for  the  drawers,  take  such  stock  to  and  sell  it  in 
Chicago,  and  remit  the  proceeds  to  the  drawers  for  the  payment 
of  the  checks,  and  that  he  should  receive  for  his  services  in  tran- 
sacting the  business  a  portion  of  the  profits. 

The  rule  of  damages  as  to  the  cattle  not  taken  by  Gavin  of  the 
plaintiff,  pursuant  to  the  contract,  was  correct.  That  was  that 
the  plaintiff  was  entitled  to  recover  upon  the  failure  of  Gavin  to 
take  and  pay  for  the  cattle,  as  required  by  his  contract,  the  dif- 
ference between  the  contract  price  and  the  then  market  value. 
The  plaintiff  had  a  right  to  tender  the  cattle,  and  sue  Gavin  for 
the  price  agreed  to  be  paid,  or  he  could,  at  his  election,  keep  the 
cattle  as  his,  and  recover  his  damages  for  the  breach  the  dif- 
ference between  the  contract  price  and  then  market  value. 
Sedgv/.  Dam.  (5th  Ed.)  313,  and  cases  cited  in  note  3.  The 
plaintiff  in  the  present  case  chose  to  adopt  the  latter  course,  and, 
in  case  the  market  fell  subsequently,  it  was  his  loss;  if  it  im- 
proved, it  was  his  gain.  The  time  at  which  the  damages  were  to 
be  fixed,  when  the  vendor,  as  in  the  present  case,  chooses  to  re- 
tain the  property,  is  that  fixed  for  the  performance  of  the  con- 
tract. Dustan  v.  Andrew,  10  Bosw.  130.  So  far  as  it  coun- 
tenances any  different  rule  in  this  respect,  it  was  not  well  consid- 
ered, and  cannot  be  regarded  as  law.  It  matters  not  to  the  de- 
fendant what  the  plaintiff  got  for  the  cattle  six  months  or  any 
other  time  after  the  breach  of  the  contract  by  Gavin  to  take  and 
pay  for  them.  Tt  appears  that  cattle  rose  in  the  market  after 
this.  This  was  the  good  fortime  of  the  plaintiff,  of  which  the 
defendant  cannot  avail  himself. 

Judgment  affirmed. 


20 


306  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

KADISII  V.  YOUNG. 

Illinois,   JSS;5.     lOS   HI.   170. 

This  was  an  action  of  assumpsit.  A  trial  was  had,  resulting 
in  a  verdict  and  a  judgment  of  $20,000  damages  against  the 
defendants. 

SCHOLFIELD,  J.  This  was  assumpsit,  bj^  appellees,  against  ap- 
pellants, to  recover  damages  sustained  by  the  breach  of  an  al- 
leged contract,  whereby,  on  the  15th  of  December,  1880,  ap- 
pellees sold  to  appellants  100,000  bushels  of  No.  2  barley,  at  one 
dollar  and  twenty  cents  per  bushel,  to  be  delivered  to  appellants, 
and  paid  for  by  them,  at  such  time  during  the  month  of  January, 
1881,  as  appellees  should  elect.  Appellees  tendered  to  ap- 
pellants warehouse  receipts  for  100,000  bushels  of  No.  2  barley 
on  the  12th  of  January,  1881,  but  appellants  refused  to  receive 
the  receipts  and  pay  for  the  barley.  Within  a  reasonable  time 
thereafter  appellees  sold  the  barley  upon  the  market,  and  hav- 
ing credited  appellants  with  the  proceeds  thereof,  they  brought 
this  suit,  and  on  the  trial  in  the  circuit  court  they  recovered  the 
difference  between  the  contract  price  and  the  value  of  the  barley 
in  the  market  on  the  day  it  was  to  have  been  delivered  by  the 
terms  of  the  contract.  Upon  the  trial  appellants  denied  the  mak- 
ing of  the  alleged  contract,  that  they  were  partners,  or  that  any 
purchase  of  the  barley  was  made  for  their  joint  account ;  and 
they  also  contended,  if  a  contract  was  shown,  then  that  on  the 
next  day  after  it  was  made  they  gave  notice  to  appellees  that 
they  did  not  consider  themselves  bound  by  the  contract,  and 
they  would  not  comply  with  its  terms,  and  evidence  was  given 
tending  to  sustain  this  contention.     *     *     * 

The  questions  of  law  to  which  our  attention  has  been  directed 
by  the  arguments  of  counsel,  arise  upon  the  rulings  of  the  cir- 
cuit judge  in  giving  and  refusing  instructions.  He  thus  ruled, 
among  other  things,  that  appellants,  by  giving  notice  to  ap- 
pellees on  the  next  day  after  the  making  of  the  contract  that  they 
would  not  receive  the  barley  and  comply  with  the  terms  of  the 
contract,  did  not  create  a  breach  of  such  contract  which  ap- 
pellees were  bound  to  regard,  or  impose  upon  them  the  legal 
obligation  to  resell  the  barley  on  the  market,  or  make  a  forward 
contract  for  the  purchase  of  other  barley  of  like  amount  and 
time  of  delivery,  within  a  reasonable  time  thereafter,  and  credit 
appellants  with  the  amount  of  such  sale,  or  give  them  the  benefit 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  307 

of  such  forward  contract,  but  that  appellees  had  the  legal  right, 
notwithstanding  such  notice,  to  wait  until  the  day  for  the  de- 
livery of  the  barley  by  the  terms  of  the  contract,  and  then,  upon 
appellants'  failure  to  receive  and  pay  for  it  on  its  being  ten- 
dered, to  resell  it  on  the  market,  and  recover  from  appellants  the 
difference  between  the  contract  price  of  the  barley  and  its 
market  value  on  the  day  it  was  to  have  been  delivered. 

That  in  ordinary  cases  of  contract  of  sale  of  personal  prop- 
erty for  future  delivery,  and  failure  to  receive  and  pay  for  it  at 
the  stipulated  time,  the  measure  of  damages  is  the  difference 
between  the  contract  price  and  the  market  or  current  value  of  the 
property  at  the  time  and  place  of  delivery,  has  been  settled  by 
previous  decisions  of  this  court  (see  McNaught  v.  Dodson,  49  111. 
446,  Larrabee  v.  Badger,  45  Id.  440,  and  Saladin  v.  Mitchell,  Id. 
79),  and  is  not  contested  by  appellants'  counsel.  But  their  con- 
tention is,  that  in  case  of  such  contract  of  sale  for  future  de- 
livery, where,  before  the  time  of  delivery,  the  buyer  gives  the 
seller  notice  that  he  will  not  receive  the  property  and  comply 
with  the  terms  of  the  contract,  this,  whether  the  seller  assents 
thereto  or  not,  creates  a  breach  of  the  contract,  or,  at  all  events, 
imposes  the  legal  duty  on  the  seller  to  thereafter  take  such  steps 
with  reference  to  the  subject  of  the  contract,  as,  by  at  once  resell- 
ing the  property  on  the  market  on  account  of  the  buyer,  or  mak- 
ing a  forward  contract  for  the  purchase  of  other  property  of  like 
amount  and  time  of  delivery,  shall  most  effectually  mitigate  the 
damages  to  be  paid  by  the  buyer  in  consequence  of  the  breach, 
without  imposing  loss  upon  the  seller.  If  the  buyer  may  thus 
create  a  breach  of  the  contract  without  the  consent  of  the  seller, 
we  doubt  not  the  duty  to  sell  (where  the  property  is  in  the  pos- 
session of  the  seller  at  the  time),  at  least  within  a  reasonable 
time  after  such  breach,  will  result  as  a  necessary  consequence  of 
the  breach.  When  the  breach  occurs  by  a  failure  to  accept  and 
pay  for  property  tendered  pursuant  to  the  terms  of  a  contract,  at 
the  day  specified  for  its  delivery,  this  is  doubtless  the  duty  of  the 
seller,  and  no  reason  is  now  perceived  why  it  should  not  equally 
result  from  any  breach  of  the  contract  upon  which  the  seller  is 
legally  bound  to  act. 

But  the  well  settled  doctrine  of  the  English  courts  is,  that  a 
buyer  cannot  thus  create  a  breach  of  contract  upon  which  the 
seller  is  bound  to  act.  [Here  the  learned  justice  cites  authorities.] 

Nothing  would  seem  to  be  plainer  than  that  while  the  contract 


308  DAMAGES   IN    ACTIONS   ON    CONTKACTS. 

is  still  subsisting  and  unbroken,  the  parties  can  only  be  com- 
pelled to  do  that  which  its  terms  require.  This  contract  im- 
posed no  duty  upon  appellees  to  make  other  contracts  for 
January  delivery,  or  to  sell  barley  in  December,  to  protect  ap- 
pellants from  loss.  It  did  not  even  contemplate  that  appellees 
should  have  the  barley  ready  for  delivery  until  such  time  in 
January  as  they  should  elect.  If  appellees  had  then  the  barley 
on  hand,  and  had  acted  upon  appellants'  notice,  and  accepted 
and  treated  the  contract  as  then  broken,  it  would,  doubtless, 
then  have  been  their  duty  to  have  resold  the  barley  upon  the 
market,  precisely  as  they  did  in  January,  and  have  given  ap- 
pellants credit  for  the  proceeds  of  the  sale;  but  it  is  obviously 
absurd  to  assume  that  it  could  have  been  appellees'  duty  to  have 
sold  barley  in  December  to  other  parties  which  it  was  their 
duty  to  deliver  to  appellants,  and  which  appellants  had  a  legal 
right  to  accept  in  January. 

We  have  been  referred  to  Dillon  v.  Anderson,  43  N.  Y.  232, 
Danforth  et  al.  v.  Walker,  37  Vt.  240  (and  same  case  again  in  40 
Vt.  357),  and  Collins  v.  De  Laporte,  115  Mass.  159,  as  recogniz- 
ing the  right  of  either  party  to  a  contract  to  create  a  breach  of  it 
obligatory  upon  the  other  party,  by  giving  notice,  in  advance 
of  the  time  for  the  commencement  of  the  performance  of  the  con- 
tract, that  he  will  not  comply  with  its  terms.  An  examination 
of  the  cases  will  disclose  that  they  do  not  go  so  far,  but  that  they 
are  entirely  in  harmony  with  what  we  have  heretofore  indicated 
is  our  opinion  in  respect  of  the  law  applicable  to  the  present 
question. 

In  Dillon  v.  Anderson,  the  action  was  for  a  breach  of  contract 
for  the  construction  of  a  pair  of  boilers  for  a  steamboat.  After 
work  had  been  commenced  uncjer  the  contract,  and  a  certain 
amount  of  material  had  been  purchased  therefor  by  the  plain- 
tiff, notice  was  given  by  the  defendant  to  stop  work,  that  the 
contract  was  rescinded  by  the  defendant,  and  that  he  would 
make  the  plaintiff  whole  for  any  loss  he  might  suffer.  The 
court  held  that  it  was  the  duty  of  the  plaintiff,  as  soon  as  he  re- 
ceived the  notice,  to  have  so  acted  as  to  save  the  defendant  from 
further  damage,  so  far  as  it  was  in  his  power. 

In  Danforth  et  al  v.  Walker.  37  &  40  Vt.,  the  defendant  made 
a  contract  with  the  plaintiffs  to  purchase  of  them  five  car  loads 
of  potatoes,  being  fifteen  hundred  bushels,  to  be  delivered  at  a 
designated  place  as  soon  as  the  defendant  should  call  for  them, 


CONTRACTS    RELATING   TO   PERSONAL   PROPERTY.  309 

and  as  soon  as  he  could  get  them  away,  some  time  during  the 
winter.  Soon  after  the  first  car  load  was  taken,  potatoes  fell  in 
the  market,  and  the  defendant  thereupon  wrote  the  plaintiffs  not 
to  purchase  any  more  potatoes  until  they  should  hear  from  him. 
The  court  held  this  created  a  breach  of  the  contract,  and  that 
plaintiffs  were  not  authorized  to  purchase  any  more  potatoes  on 
account  of  the  defendant  after  they  received  the  notice.  The 
court,  in  the  case  in  37  Vt.,  on  page  244,  use  this  language : 
"While  a  contract  is  executory  a  party  has  the  power  to  stop  per- 
formance on  the  other  side  by  an  explicit  direction  to  that  effect, 
by  subjecting  himself  to  such  damages  as  will  compensate  the 
other  party  for  being  stopped  in  the  performance  on  his  part  at 
that  point  or  stage  in  the  execution  of  the  contract.  The  party 
thus  forbidden  cannot  afterwards  go  on,  and  thereby  increase  the 
damages,  and  then  recover  such  increased  damages  of  the  other 
party."  And  this  same  rule,  upon  the  authority  of  these  cases, 
is  laid  dowTi  in  2  Sutherland  on  Damages,  361. 

The  points  in  issue  in  Collins  v.  De  Laporte  are  not  pertinent 
to  the  present  question,  but  in  the  opinion  the  court  quotes  the 
rule  as  above  laid  down,  upon  the  authority  of  Danforth  et  al.  v. 
Walker,  and  other  cases. 

It  will  be  observed  that  in  each  of  these  cases  the  time  for  the 
performance  of  the  contract  had  arrived,  and  its  performance 
had  been  entered  upon.  In  neither  of  them  was  the  defendant 
at  liberty,  after  notifying  the  plaintiff  not  to  proceed  further  in 
the  performance  of  the  contract,  to  demand  that  he  should  pro- 
ceed to  perform  it,  as  it  was  said  in  Frost  v.  Knight  supra,  the 
defendant  was,  in  case  3f  notice,  not  to  perform  a  contract  the 

time  of  performance  of  which  is  to  commence  in  the    future. 

*     *     * 

It  follows  that,  in  our  opinion,  the  ruling  on  the  point  in  ques- 
tion was  free  of  substantial  objection.     *     *     * 

Upon  the  whole,  we  perceive  no  error  of  law  in  the  rulings  be- 
low.   The  judgment  is  therefore  affirmed. 

Judgment  affirmed. 


310  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

CANDA  V.  WICK. 

New  York,  1SS5.     100  N.  Y.  127. 

This  action  was  brought  to  recover  damages  for  an  alleged 
breach  of  contract  to  receive  and  pay  for  400,000  brick,  at  a 
stipulated  price  of  $7.25  per  thousand. 

The  referee  found  that  on  Sept.  13,  1881,  the  plaintiffs  agreed 
t'l  sell  the  said  400,000  bricks  to  the  defendant  and  deliver  them 
on  the  street  in  front  of  the  premises  where  a  building  was  be- 
ing erected  by  the  defendant.  On  Sept.  21st,  the  plaintiffs  de- 
livered 2,000  brick  when  defendant  prevented  further  delivery, 
although  plaintiffs  offered  to  perform  the  contract  on  their  part. 
The  market  value  of  such  was  at  that  time  $6.75  per  thousand. 
There  was  no  tender  of  any  brick  after  Sept.  21st.  On  Oct.  14th, 
defendant  demanded  the  remainder  of  the  brick,  but  the  plain- 
tiffs refused  to  deliver.  The  market  value  of  the  brick  was  then 
$8.25  per  thousand.  The  referee  allowed  as  damages  the  dif- 
ference between  the  contract  price  and  the  market  price  at  the 
time  of  refusal  to  accept  delivery. 

Andrews,  J.  The  referee  found,  upon  sufficient  evidence  to 
justify  the  finding,  that  the  reasons  assigned  by  the  defendant 
on  the  21st  of  September,  1881,  for  refusing  to  receive  the  bal- 
ance of  the  brick  of  the  cargo  of  the  schooner  Ellen,  were  ground- 
less. He  further  found  that  the  brick  were  of  the  quality 
specified  in  the  contract,  and  that  there  was  a  sufficient  avail- 
able space  for  piling  them.  Upon  the  defendant's  refusal  to  per- 
mit the  plaintiffs'  cartmen  to  continue  the  delivery,  the  plaintiffs 
offered  to  deliver  the  balance  of  the  cargo,  and  stated  to  the  de- 
fendant that  if  brick  advanced  in  price,  they  could  not  be  held 
responsible  for  the  delivery  on  the  contract.  The  defendant  per- 
sisted in  his  refusal  to  receive  any  more  brick  from  the  cargo  of 
the  Ellen,  assigning  the  reasons  before  stated,  viz.:  defective 
quality  and  want  of  space.  The  plaintiffs  had  a  right  to  make 
delivery  on  the  contract,  on  the  21st  of  September.  The  written 
memorandum  is  silent  as  to  the  time  of  delivery,  but  the  evidence 
shows  that  prompt  delivery  and  acceptance  was  contemplated, 
and  that  this  was  one  of  the  considerations  upon  which  the  plain- 
tiff's entered  into  the  contract.  The  tender  and  refusal  con- 
stituted, we  think,  a  breach  of  the  contract  by  the  defendant.  It 
was  not  necessary  that  the  plaintiffs  should  tender  the  whole  four 
hundred  thousand  brick  in  order   to  put  the  defendant   in  de- 


CONTRACTS   RELATING   TO    PERSONAL   PROPERTY.  311 

fault.  It  was  not  contemplated  that  the  entire  number  should  be 
delivered  in  one  mass,  but  as  is  evident  from  the  situation  of  the 
parties  and  the  surroundings,  they  were  to  be  delivered  from 
time  to  time,  at  the  convenience  of  the  plaintiffs,  but  without 
delaying  the  defendant  in  prosecuting  the  work  in  which  they 
were  to  be  used.  When  the  defendant  refused  without  adequate 
reason  to  accept  the  cargo  of  the  Ellen,  the  plaintiffs  were  at 
liberty  to  treat  the  contract  as  broken,  and  were  not  bound  to 
make  an  actual  tender  of  the  remainder  of  the  brick  before 
bringing  the  action.  This  would  have  been  a  useless  ceremony. 
The  warning  given  by  the  plaintiffs  to  the  defendant,  that  his  re- 
fusal would  absolve  them  from  any  obligation  on  the  contract, 
was  not,  as  is  claimed,  equivalent  to  an  assertion  of  a  right  on 
their  part  to  regard  the  contract  as  still  subsisting  and  executory 
or  as  a  reservation  of  a  right  to  deliver  the  brick  if  they  should 
so  elect.  The  letter  of  October  4,  1881,  shows  that  on  several  oc- 
casions after  the  21st  of  September,  the  plaintiffs  were  willing 
to  go  on  with  the  contract,  but  the  defendant  was  not  ready  and 
only  became  ready  when  brick  had  greatly  advanced  in  price. 
The  right  of  action  having  accrued  from  the  transaction  of  Sep- 
tember 21st,  it  was  not  waived  as  matter  of  law  by  a  subsequent 
offer  on  the  part  of  the  plaintiffs  to  furnish  the  brick,  which  was 
not  accepted  by  the  defendant  until  the  advance  in  the  market 
had  materially  changed  the  situation.  The  price  which  the 
plaintiffs  received  for  the  brick  on  sale  to  other  parties  was  im- 
material in  view  of  the  facts  that  they  were  delivered  on  con- 
tracts made  prior  to  September  21st,  and  that  the  plaintiffs  had 
the  ability  to  furnish  all  the  brick  required  for  all  their  con- 
tracts, including  that  with  the  defendant. 

The  judgment  should  be  affirmed. 

All  concur.  Judgment  affirmed. 


WINDMULLER  v.  POPE. 

New  York,  1887.     107  N.  Y.  674. 


Action  for  breach  of  contract  to  purchase  iron. 

In  January,  1880,  plaintiffs  agreed  to  sell  and  defendants  to 
buy  "about  twelve  hundred  tons  old  iron,  ,  ,  .  ,  for  shipment 
from  Europe  at  sellers'  option,  by  sail  or  steam  vessels  to  New 
York,  Philadelphia  or  Baltimore,  at  any  time   from  May   1   to 


312  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

July  15,  18S0,  at  thirty-five  dollars  per  ton,  .  .  .  deliverable  in 
vessels  at  either  of  the  above  ports  ou  arrival."  On  or  about 
June  12,  1880,  defendants  notified  plaintiffs  that  they  would 
not  receive  or  pay  for  the  iron,  and  that  they  must  not  ship  any 
to  them,  riaintift's  thereupon  sold  said  iron  abroad  which  they 
had  purchased  to  carry  out  the  contract. 

(An  extract  from  opinion.)  We  think  no  error  is  presented 
upon  the  record  which  requires  a  reversal  of  the  judgment.  The 
defendants  having  on  the  12th  of  June,  1880,  notified  the  plain- 
tiffs that  they  would  not  receive  the  iron  rails  or  pay  for  them, 
and  having  informed  them  on  the  next  day  that  if  they  brought 
the  iron  to  New  York  they  would  do  so  at  their  own  peril,  and 
advised  them  that  they  had  better  stop  at  once  attempting  to 
carry  out  the  contract,  so  as  to  make  the  loss  as  small  as  pos- 
sible, the  plaintiffs  were  justified  in  treating  the  contract  as 
broken  by  the  defendant  at  that  time,  and  were  entitled  to  bring 
the  action  immediately  for  the  breach,  without  tendering  the  de- 
livery of  the  iron,  or  awaiting  the  expiration  of  the  period  of 
performance  fixed  by  the  contract ;  nor  could  the  defendants  re- 
tract their  renunciation  of  the  contract  after  the  plaintiffs  had 
acted  upon  it  and,  by  a  sale  of  the  iron  to  other  parties,  changed 
their  position.  (Dillon  v.  Anderson,  43  N.  Y.  231 ;  Howard  v. 
Daly,  61  id.  362 ;  Ferris  v.  Spooner,  102  id.  12 ;  Hochster  v.  De 
La  Tour,  2  El.  &  Bl.  678 ;  Cort  v.  Ambergate,  etc.,  Railway  Co., 
17  Ad.  &  El.  127 ;  Crabtree  v.  Messermoth,  19  la.  179 ;  Benjamin 
on  Sales,  §§  567,  568.) 

The  ordinary  rule  of  damages  in  an  action  by  a  vendor  of 
goods  and  chattels,  for  a  refusal  by  the  vendee  to  accept  and  pay 
for  them,  is  the  difference  between  the  contract-price  and  the 
market  value  of  the  property  at  the  time  and-  place  of  delivery. 
(Dana  v.  Fiedler,  12  N.  Y.  40;  Dustan  v.  McAndrew,  44  id.  72; 
Cahen  v.  Piatt,  69  id.  348.) 

Per  curiam  opinion  for  affirmance. 

All  concur. 

Judgment  affirmed. 


UNEXCELLED  FIRE-WORKS  CO.  v.  POLITES. 

Pennsylvania,  1890.       130  Pa.  536. 

Clark,  J.     This  is  an  action  of  assumpsit,  brought  July  20, 
1888,  to  recover  the  price  of  a  certain  lot  of  fire-works  and  eel- 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  313 

ebration  goods,  ordered  by  the  defendant,  George  Polites,  from 
the  Unexcelled  Fire- Works  Company,  of  New  York,  in  Feb- 
ruary, 1888.  The  first  order,  which  was  for  his  store  in  New 
Castle,  was  given  through  the  plaintiffs'  agent,  Alexander  Mor- 
rison, and  amounted  to  $208.53 ;  the  second,  sent  directly  to  the 
plaintiffs,  was  for  the  defendant's  store  in  Washington,  Pa.,  and 
amounted  to  $123.83.  These  orders  were  in  writing,  and  were 
signed  by  the  defendant;  they  specified,  not  only  the  particular 
kind  and  quality  of  the  articles  ordered,  but  contained  also  a 
schedule  of  the  prices  to  be  paid  therefor.  The  goods  were  to  be 
shipped  in  May,  and  were  to  be  paid  for  on  the  10th  day  of  July 
thereafter.  Upon  receipt  of  these  orders  the  plaintiffs  trans- 
mitted by  letter  a  formal  acceptance  of  them;  a  contract  was 
thus  created,  the  obligation  of  which  attached  to  both  parties, 
and  which  neither  of  them,  without  the  agreement  or  assent  of 
the  other,  could  rescind.  On  April  5,  1888,  the  defendant,  by 
letter,  informed  the  plaintiffs  that  he  did  not  want  the  goods, 
and  notified  the  plaintiffs  not  to  ship  them,  as  he  could  do  better 
with  another  company.  The  plaintiffs  replied  that  they  had  ac- 
cepted the  orders,  and  had  placed  them  in  good  faith,  and  that 
the  goods  would  be  shipped  in  due  time,  according  to  the  agree- 
ment. 

The  goods  were  shipped  within  the  time  agreed  upon — the 
first  lot  to  New  Castle,  and  the  second  lot  to  Washington,  ac- 
cording to  contract ;  but  on  their  arrival  the  defendant  declined 
to  receive  them.  The  carrier  notified  the  shippers  that,  owing 
to  the  dangerous  and  explosive  quality  of  the  goods,  they  would 
not  retain  them  in  their  possession ;  the  plaintiffs  thereupon  re- 
ceived them  back  from  the  carriers,  and  placed  them  on  storage, 
subject  to  the  defendant's  order. 

The  plaintiffs  allege  that  they  are  manufacturers  and  import- 
ers of  such  fire-worfe  as  are  used  in  the  Fourth  of  July  celebra- 
tions throughout  the  country;  that  it  is  not  profitable  to  carry 
these  goods  over  from  one  season  to  another,  and  that  therefore 
the  quantity  manufactured  and  imported  depends  upon  the  ex- 
tent of  the  orders  received ;  that  the  defendant 's  orders  entered 
into  their  estimates  of  goods  to  be  made  up  and  imported  for  the 
season  of  1888,  and  that  the  goods  ordered  by  the  defendant 
were  actually  made  up  before  the  order  was  countermanded. 
The  defendant  testifies,  however,  that  Mr.  Morrison,  the  plain- 
tiffs' agent,  informed  him,  at  the  time  he  gave  the  first  order, 


314  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

that  the  phiin tiffs  had  some,  at  least,  oi"  the  articles  in  stock,  and 
that  he  did  not  order  any,  either  to  bo  manufactured  or  im- 
ported on  his  account ;  that  the  transaction  was  simply  a  bargain 
and  sale  of  goods,  and  not  an  order  for  goods  to  be  manufac- 
tured or  imported;  and  the  evidence  does  not  seem  to  conflict 
with  this  view  of  the  case. 

It  is  plain  that  the  notice  given  to  the  plaintiffs  by  the  de- 
fendant not  to  ship  the  goods  was  a  repudiation  of  the  contract; 
it  was  not  a  rescission,  for  it  was  not  in  the  power  of  any  one 
of  the  parties  to  rescind;  but  it  was  a  refusal  to  receive  the 
goods,  not  only  in  advance  of  the  delivery,  but  before  they  were 
separated  from  the  bulk,  and  set  apart  to  the  defendant;  the 
direction  not  to  ship  was  a  revocation  of  the  carrier's  agency  to 
receive,  and  the  plaintiffs  thereby  had  notice  of  the  revocation. 
The  delivery  of  the  goods  to  the  carrier,  therefore,  was  un- 
authorized, and  the  carrier's  receipt  would  not  charge  the  de- 
fendant. The  plaintiffs  made  the  carrier  their  agent  for  deliv- 
ery, but  the  goods  were  in  fact  not  delivered.  A  delivery  was 
tendered  by  the  carrier,  when  the  goods  arrived  at  their  destina- 
tion, but  they  were  not  received.  The  action,  therefore,  could 
not  be  for  the  price,  but  for  special  damages  for  a  refusal  to 
receive  the  goods  when  the  delivery  was  tendered.  We  think  the 
statement  was  sufficient  to  justify  a  recovery  of  such  damages, 
as  the  words  of  the  statement  were  clearly  to  this  effect ;  but 
there  was  no  evidence  given  of  the  market  value  of  the  goods 
as  compared  with  the  price.  It  does  not  appear  that  the  plain- 
tiffs had  suffered  any  damage.  For  anything  that  was  shown, 
the  goods  were  worth  the  price  agreed  upon  in  the  open  market. 

Whilst  the  manifest  tendency  of  the  cases  in  the  American 
courts,  now,  is  to  the  doctrine  that  when  the  vendor  stands  in 
the  position  of  a  complete  performance  on  his  part,  he  is  entitled 
to  recover  the  contract  price  as  his  measure  of  damages,  in  the 
ease  of  an  executory  contract  for  the  sale  of  goods  not  specific, 
the  rule  undoubtedly  is  that  the  measure  of  damages  for  a  re- 
fusal to  receive  the  goods  is  the  difference  between  the  price 
agreed  upon  and  the  market  value  on  the  day  appointed  for  de- 
livery. 

Judgment  affirmed. 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  315 

VAN  BROCKLEN  v.  SMEALLIE. 

New  York,  1893.       140  N.  Y.  70. 

This  action  was  brought  to  recover  damages  for  breach  of  con- 
tract for  the  sale  of  an  interest  in  a  partnership. 

Finch,  J.  The  only  question  in  this  case  is  one  of  damages. 
The  plaintiff  and  defendant  entered  into  a  written  agreement 
whereby  the  former  agreed  to  sell  and  convey,  and  the  latter  to 
purchase  and  receive,  the  plaintiff's  undivided  one-third  interest 
in  the  partnership  of  Snyder,  Van  Brocklen,  and  Hull,  whose  as- 
sets consisted  of  real  estate  held  as  partnership  property  for  the 
use  of  the  business,  stock  on  hand,  and  debts  due  or  to  become 
due ;  and  who  were  manufacturers  of  knit  goods,  occupying  their 
mill  for  that  purpose.  The  contract  was  dated  February  21st, 
1891 ;  the  price  to  be  paid  was  ten  thousand  dollars ;  and  the 
formal  instruments  of  sale  were  to  be  delivered  and  the  price  to 
be  paid  on  or  before  the  ensuing  first  of  March.  The  partner- 
ship interest  of  the  plaintiff  was  personal  property  (Menagh  v. 
Whitwell,  52  N.  Y.  146;  Morss  v.  Gleason,  64  id.  204)  ;  and  the 
title  passed  at  once  upon  the  execution  of  the  agreement,  for  it 
is  the  general  rule  that  a  mere  contract  for  the  sale  of  goods, 
where  the  subject  is  identified  and  nothing  remains  to  be  done  by 
the  seller  before  making  delivery,  transfers  the  right  of  property, 
although  the  price  has  not  been  paid,  nor  the  goods  sold  deliv- 
ered to  the  purchaser.  (Bradley  v.  Wheeler,  44  N.  Y.  502.)  On 
the  morning  of  February  28th,  which  was  three  days  after  the 
sale,  the  defendant  announced  to  his  vendor  his  purpose  to 
"throw  up"  the  contract  and  to  "drop  it  right  there."  He 
made  no  complaint  as  to  its  fairness  or  justice,  no  assertion  of 
any  deception  or  mistake,  not  even  of  any  disappointment  in 
his  bargain,  but  merely  said  that  he  had  partly  promised  to  put 
some  money  into  another  enterprise  and  could  not  put  it  in  both ; 
that  his  brother  was  "kicking,"  and  so  he  should  not  fulfill  his 
agreement.  Ordinarily,  the  vendee  in  default  proffers  some 
show  of  justification  for  his  refusal  to  perform.  This  defendant 
had  no  excuse,  but  broke  his  contract  because  he  chose  to  do  so. 
The  vendor,  on  the  same  day,  served  a  written  notice  upon  the 
vendee  to  the  effect  that  he,  the  seller,  was  prepared  to  carry  out 
the  stipulations  of  the  contract ;  that  the  papers  on  his  part  were 
executed  and  ready  for  delivery,  and  could  be  seen  at  the  place 
where  the  exchange  was  to  be  made,  and  where  they  had  been 


316  DAMAGES   IN   ACTIONS  ON   CONTRACTS. 

formally  tendered  to  the  vendee.  As  the  lirst  of  March  fell  on 
Sunday,  the  notice  offered  performance  on  the  day  before  or  the 
day  after,  and  insisted  upon  performance  on  the  latter  day  at 
least.  The  defendant  wholly  disregarded  the  notice,  and 
neglected  and  refused  to  fultill  his  contract.  On  the  second  of 
April  following  the  plaintiff  gave  a  further  written  notice  to  the 
vendee  that  he  had  made  diligent  effort  to  sell  the  property  since 
the  hitter's  refusal  to  take  it;  that  the  best  offer  made  was  about 
$2,500  less  than  the  contract  price ;  that  he  was  to  give  an  answer 
by  the  next  night ;  and  that  if  he  heard  nothing  to  the  contrary 
he  should  aece.pt  the  offer  and  hold  the  vendee  for  the  resulting 
loss.  The  defendant  paid  no  attention  to  this  notice,  made  no 
objection,  asked  no  delay,  requested  no  different  mode  of  disposi- 
tion, suggested  no  purchaser  willing  to  pay  more,  but  simply  re- 
mained silent.  The  plaintiff  thereupon  sold  the  one-third  in- 
terest to  his  partners,  Snyder  and  Hull,  for  $7,500,  not  requiring 
the  cash,  but  taking  $6,000  in  notes  and  the  balance  in  specific 
articles  of  property.  There  is  .no  proof,  no  pretense,  not  even  a 
suggestion  in  the  record,  that  this  sale  was  not  perfectly  fair 
and  productive  of  the  best  price  possible  to  be  obtained. 

On  these  facts  the  plaintiff  sued,  seeking  to  recover  the  defi- 
ciency on  the  re-sale.  In  answer  to  inquiries  of  the  defendant, 
he  testified  that  the  interest  contracted  to  be  sold  was  worth 
$10,000  when  the  agreement  was  executed,  and  when  it  was  to 
be  performed,  and  such  may  have  been  its  intrinsic  worth,  and 
yet  its  sale  value  may  have  been  much  less. 

At  the  close  of  his  case  the  defendant  asked  the  court  to  rule 
as  matter  of  law  upon  the  facts,  that  the  measure  of  damages 
was  the  difference  between  the  value  of  the  property  at  the  date 
of  the  contract  and  the  date  of  performance,  and  that  since  there 
was  no  such  difference,  the  plaintiff  was  entitled  only  to  nominal 
damages.  The  plaintiff  objected  to  any  such  ruling,  insisting 
that  on  the  facts  he  was  entitled  to  recover  the  deficiency  on  the 
re-sale.  The  court  ruled  that  only  nominal  damages  could  be  re- 
covered, and  directed  a  verdict  for  six  cents,  to  which  the  plain- 
tiff excepted.  On  appeal  the  General  Term  affirmed  the  judg- 
ment. 

The  ground  of  that  affirmance  is  certainly  erroneous.  The 
rule  of  damages  applied  was  that  which  pertains  to  sales  of  real 
property,  and  which  differs  in  scope  and  in  principle  from  that 
applicable  to  sales  of  personal  property.    The  opinion  describes 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY,  317 

the  contract  as  one  for  *Hhe  purchase  of  land,"  and  all  the 
authorities  cited  relate  to  sales  of  real  estate.  They  have  no  ap- 
plication to  the  ease  in  hand.  The  plaintiff  had  no  land  to  sell 
and  did  not  contract  to  sell  any.  What  he  did  bargain  about  was 
his  ultimate  interest  in  the  partnership  assets  when  converted 
into  money  and  after  payment  of  all  debts.  His  share  of  the 
net  surplus  then  remaining  was  the  only  subject  of  sale,  and  all 
that  he  contracted  to  sell.  His  vendee  would  not  and  could  not 
become  a  partner  by  force  of  the  purchase,  would  gain  no  title  to 
the  assets  as  such,  and  could  only  force  a  sale  of  such  assets,  in- 
cluding the  mill,  and  the  distribution  of  the  proceeds.  It  was 
said  in  Tarbell  v.  West,  86  N.  Y.  287,  that  "it  is  now  well  settled 
that  a  purchaser  from  one  partner  of  his  interest  in  the  partner- 
ship, acquires  no  title  to  any  share  of  the  partnership  effects,  but 
only  his  share  of  the  surplus,  after  an  accounting,  and  the  ad- 
justment of  the  partnership  affairs."  The  courts  below,  there- 
fore, proceeded  on  a  wrong  basis,  which  led  them  into  error. 

In  this  court  the  rule  of  dama'ges  for  a  breach  by  the  buyer  of  a 
contract  for  the  sale  of  personal  property,  is  perfectly  well  set- 
tled. (Dustan  v.  Mc Andrew,  44  N.  Y.  78 ;  Ilayden  v.  Demets,  53 
id.  426.)  In  each  of  these  cases  it  was  ruled  that  the  vendor  of 
personal  property  has  three  remedies  against  the  vendee  in  de- 
fault. The  seller  may  store  the  property  for  the  buyer  and  sue 
for  the  purchase  price ;.  or  may  sell  the  property  as  agent  for  the 
vendee  and  recover  any  deficiency  resulting;  or  may  keep  the 
property  as  his  own  and  recover  the  difference  between  the  con- 
tract price  and  the  market  price  at  the  time  and  place  of  deliv- 
ery. In  the  second  of  the  decisions  last  cited,  it  was  further  held 
that  the  rule  applied,  not  only  to  eases  where  the  title  passed  at 
once,  but  also  to  cases  where  the  contract  was  executory  but 
there  had  been  a  valid  tender  and  refusal.  Where  the  second 
method  is  adopted  and  the  vendor  chooses  to  make  a  re-sale,  that 
need  not  be  at  auction,  unless  such  is  the  customary  method  of 
selling  the  sort  of  property  in  question,  nor  is  it  absolutely  essen- 
tial that  notice  of  the  time  and  place  of  sale  should  be  given  to 
the  vendee.  (Pollen  v.  LeRoy,  30  N.  Y.  556.)  Still,  as  the  sale 
must  be  fair,  and  such  as  is  likely  to  produce  most  nearly  the  full 
and  fair  value  of  the  article,  it  is  always  wisest  for  the  vendor  to 
give  notice  of  his  intention  to  re-sell,  and  quite  unsafe  to  omit  it. 

In  this  case  the  vendor  acted  strictly  within  the  authority  of 
our  repeated  decisions,  and  must  be  protected  unless  we  are  pre- , 


318  DAMAGES    IN    ACTIONS    ON    CONTKACTS. 

pared,  nftor  niisloading  him,  to  reverse  in  some  degree  our  own 
doctrine  deliberately  declared.  What  is  now  said  is  that  we 
ought  not  to  extend  the  vendor's  right  of  re-sale  to  a  species  of 
personal  property  such  as  is  involved  in  the  contract  before  us. 
That  is  an  erroneous  and  misleading  statement  of  the  problem. 
The  adjudged  rule  covers  every  species  of  personal  property. 
"We  have  said  of  it  that  it  is  founded  in  good  sense  and  justice, 
and  that  it  "is  the  same  in  all  sales,  and  in  respect  to  property 
of  every  description."  (Pollen  v.  LeRoy,  supra.)  The  rale, 
therefore,  needs  no  extension  since  it  already  covers  the  present 
case ;  and  the  real  suggestion  is  that  we  should  begin  for  the  first 
time  to  make  exceptions  to  it,  and  here  and  now  take  out  of  its 
scope  and  operation  the  one  specific  sort  of  personal  prop- 
erty which  consists  of  an  undivided  interest  in  a  partnership. 
I  feel  myself  bound  to  resist  strenuously,  and  to  advise  earnestly 
against,  any  such  disintegrating  exception,  whose  logical  out- 
come will  inevitably  be  to  confuse  the  rule  with  narrow  and  arbi- 
trary distinctions;  to  open  it  to  attack  in  numerous  directions; 
to  make  its  operation  fickle  and  uncertain ;  to  breed  needless  liti- 
gation ;  and  in  the  end  to  shatter  the  rule  itself.  In  deference 
to  the  doubts  of  some  of  my  brethren,  I  ought  to  state  as  briefly 
as  possible  a  few  of  the  reasons  why  I  think  no  such  exception 
should  be  made. 

One  such  reason  concerns  the  safety  of  the  fundamental  doc- 
trine upon  which  the  rule  is  founded,  which  does  not  admit  of 
such  an  exception  as  is  now  proposed,  and  will  itself  be  endan- 
gered by  the  resultant  logic  of  the  process.  That  doctrine  is 
that  the  vendor  of  personal  property  has  a  lien,  or  something 
more  than  a  lien,  upon  it  for  the  purchase  price,  while  it  remains 
in  his  possession  awaiting  delivery,  although  the  right  of  prop- 
erty has  passed  to  the  vendee.  (Benjamin  on  Sales,  book  V., 
chap.  3,  §§  782,  783;  Schouler  on  Personal  Property,  vol.  2,  § 
547.)  The  right  of  the  unpaid  vendor  is  deemed  sometimes 
analogous  to  the  pawnee's  right  of  sale,  and  sometimes  to  the 
right  of  stoppage  in  transitu.  Whatever  it  be,  it  is  at  least  a  lien 
upon  the  property  sold  for  the  purchase  price  so  long  as  it  re- 
mains undelivered,  which  lien  the  vendor  may  enforce  by  a  sale, 
and  then  recover  any  balance  of  the  contract  price  unrealized. 
Now,  are  we  prepared  to  say  that  there  is  such  a  lien  where  the 
property  is  grain  or  hops,  or  a  horse,  but  is  not  where  it  is  an 
interest  in  a  partnership?     And  upon  what  principle  can  we 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  319 

admit  the  lien  and  the  consequent  right  to  enforce  it  in  one  case 
and  deny  it  in  the  other  ?  If  we  undertake  to  make  the  distinc- 
tion the  inevitable  result  will  be  to  shake  or  destroy  the  funda- 
mental doctrine  itself  with  consequences  which  we  may  easily  see 
would  be  likely  to  prove  disastrous. 

But,  again:  Those  who  would  draw  the  line  between  kinds 
or  classes  of  property  subject  to  re-sale,  and  those  not  so  sub- 
ject to  it,  must  tell  us  where  it  is  located,  and  upon  what  prin- 
ciple it  is  to  be  drawn.  That,  I  suspect,  would  prove  at  least  a 
difficult,  if  not  an  impossible  task.  The  effort  has  been  many 
times  made,  but  always  hitherto  has  ended  in  absolute  failure. 
At  first  the  endeavor  was  to  limit  the  remedy  to  the  case  of  per- 
ishable property,  but  in  Mac  Lean  v.  Dunn,  4  Bing.  722,  that 
effort  was  resisted.  Best,  C.  J.,  said  of  it :  "It  is  admitted  that 
perishable  articles  may  be  re-sold.  It  is  difficult  to  say  what  may 
be  considered  as  perishable  articles  and  what  not ;  but  if  articles 
are  not  perishable,  price  is,,  and  may  alter  in  a  few  days  or  a 
few  hours.  In  that  respect  there  is  no  difference  between  one 
commodity  and  another."  "And,"  he  added,  "we  are  anxious 
to  confirm  a  rule  consistent  with  convenience  and  law.  .  .  .  The 
goods  may  become  worse  the  longer  they  are  kept;  and,  at  all 
events,  there  is  the  risk  of  the  price  becoming  lower."  And 
so  the  rule  was  not  confined  merely  to  perishable  property. 

Another  line  of  distinction  is  that  between  goods  and  mer- 
chandise and  things  in  action ;  but  we  are  not  at  liberty  to  draw 
that  line  in  this  state,  even  if  it  were  possible  to  do  it  upon  any 
logical  ground.  In  Porter  v.  Wormser,  94  N.  Y.  442,  the  con- 
tract was  for  the  sale  of  government  bonds,  and  in  denying  the 
right  of  the  vendor  to  re-sell,  Judge  Andrews  put  it  upon  the 
ground  that  the  vendee  was  not  in  default,  adding :  * '  The  eon- 
tract  to  carry  had  not  expired,  and  the  sale  cannot  be  regarded  as 
the  exercise  by  a  vendor  of  personal  property,  of  a  right  to  re- 
sell on  account  of  the  vendee,  and  to  charge  the  latter  for  the 
loss,  for  the  plain  reason  that  such  right  in  any  given  case  does 
not  come  into  existence,  and  can  be  exercised  only  after  default 
by  the  vendee."  There  was  no  suggestion  that  the  rule  did  not 
apply  to  things  in  action,  and  he  cited  Dustan  v.  McAndrew, 
supra,  and  Mason  v.  Decker,  72  N.  Y.  595. 

The  latter  case  shuts  off  another  possible  ground  of  distinction 
which  might  be  that  the  rule  only  applies  to  such  personal  prop- 
erty as  is  the  subject  of  general  traffic,  and  has  a  market  value.  . 


320  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

iu  that  case,  the  thiug  sold  was  shares  of  the  stock  of  a  con- 
struction company  which  was  badly  iu  want  of  funds,  and  strug- 
gling, by  an  issue  of  bonds  to  its  friends,  to  procure  means  to 
live.  This  court  held  that  the  vendor  had  a  double  remedy,  and 
might,  as  one  of  them,  re-sell  the  stock  after  tender  to  the  vendee 
in  default,  and  recover  the  resultant  loss.  So  that  the  rule  not 
only  covers  things  in  action,  but  also  those  which  are  not  the  sub- 
ject of  general  dealing,  and  cannot  be  said  to  have  a  market 
value. 

This  last  case,  in  principle,  comes  very  near  to  the  one  at  bar. 
The  interest  of  a  stockholder  in  the  corporate  property  repre- 
sented by  his  stock  is  nothing  more  than  a  pro  rata  share  in  the 
propert}'^  of  the  company  remaining  after  the  payment  of  debts 
and  expenses,  with  the  intermediate  right  to  share  in  the  profits. 
(Burrall  v.  Bushwick  R.  R.  Co.,  75  N.  Y.  216.)  That  is  exactly 
the  description  of  the  interest  of  a  partner  in  a  partnership. 
That  one  is  incorporated  and  the  other  not  is  the  sole  difference 
between  them  without  at  all  affecting  the  common  and  identical 
character  of  the  property  owned  in  each.  It  seems  to  me  the 
case  must  be  decisive. 

But  I  draw  another  inference  from  it,  and  that  is  the  wide 
and  dangerous  sweep  of  the  doctrine  contended  for  in  its  ap- 
plication to  stock  transactions.  (I  suppose  nothing  to  be  more 
common  than  sales  of  stocks  by  vendors  for  account  of  a  default- 
ing vendee  and  a  recovery  of  the  balance  unrealized.)  Logically 
that  must  stop  if  the  exception  here  contended  for  be  allowed, 
for  I  take  it  that  none  of  us,  however  astute,  can  stand  upon  so 
thin  a  distinction  in  the  doctrine  under  consideration  as  that 
between  a  corporate  and  non-corporate  interest  in  capital  and 
assets. 

I  may  be  permitted  to  add  that  I  can  see  no  injustice  in  the 
application  of  this  rule  to  the  present  case.  Beyond  any  ques- 
tion the  defendant  could  have  been  sued  for  the  whole  purchase 
price,  and  if  solvent  could  have  been  made  to  pay  the  entire 
$10,000.  If  he  deemed  the  re-sale  for  $7,500  less  than  could  be 
or  ought  to  be  realized,  he  had  the  privilege  of  protecting  him- 
self by  procuring  a  more  liberal  purchaser  or  taking  the  prop- 
erty and  controlling  its  sale  for  himself.  He  did  neither.  He 
kept  silent.  He  defiantly  broke  his  contract  and  with  some 
natural  triumph  stands  ready  to  pay  the  six  cents.     That  is 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  321 

not  enough.    He  should  pay  the  deficiency  resulting  from    the 
sale. 

The  judgment  should  be  reversed  and  a  new   trial   granted, 
costs  to  abide  the  event. 

All  concur,  except  Andrews,  Ch,  J.,  not  voting. 

Judgment  reversed. 


ROEHM   V.   HORST. 

Supreme  Court  of  United  States,  1900.     17S  XJ.  S.  1. 

On  August  25,  1893,  plaintiff  agreed  to  sell  and  defendant 
agreed  to  purchase,  under  four  contracts,  400  bales  of  hops, 
to  be  delivered  in  installments.  Defendant  repudiated  all  liabil- 
ity. 

Fuller,  C.  J.  *  *  *  The  first  contract  falls  within  the 
rule  that  a  contract  may  be  broken  by  the  renunciation  of  liabil- 
ity under  it  in  the  course  of  performance  and  suit  may  be  im- 
mediately instituted.  But  the  other  three  contracts  involve  the 
question  whether,  where  the  contract  is  renounced  before  per- 
formance is  due,  and  the  renunciation  goes  to  the  whole  contract, 
and  is  absolute  and  unequivocal,  the  injured  party  may  treat 
the  breach  a^s  complete  and  bring  his  action  at  once.  Defendant 
repudiated  all  liability  for  hops  of  the  crop  of  1896  and  of  the 
crop  of  1897,  and  notified  plaintiffs  that  he  should  make  (accord- 
ing to  a  letter  of  his  attorney  in  the  record  that  he  had  made)  ar- 
rangements to  purchase  his  stock  of  other  parties,  whereupon 
plaintiffs  brought  suit.  The  question  is  therefore  presented,  in 
respect  of  the  three  contracts,  whether  plaintiffs  were  entitled  to 
sue  at  once  or  were  obliged  to  wait  until  the  time  came  for  the 
first  month's  delivery  under  each  of  them. 

It  is  not  disputed  that  if  one  party  to  a  contract  has  destroyed 
the  subject-matter,  or  disabled  himself  so  as  to  make  performance 
impossible,  his  conduct  is  equivalent  to  a  breach  of  the  contract, 
although  the  time  for  performance  has  not  arrived ;  and  also  that 
if  a  contract  provides  for  a  series  of  acts,  and  actual  default  is 
made  in  the  performance  of  one  of  them,  accompanied  by  a  re- 
fusal to  perform  the  rest,  the  other  party  need  not  perform,  but 
may  treat  the  refusal  as  a  breach  of  the  entire  contract,  and  re- 
cover accordingly. 

And  the  doctrine  that  there  may  be  an  anticipatory  breach 
of  an  executory  contract  by  an  absolute  refusal  to  perform  it 


322  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

has  become  the  settled  law  of  England  as  applied  to  contracts 
for  services,  for  marriage,  and  for  the  manufacture  or  sale  of 
goods.       *     «     * 

The  parties  to  a  contract  which  is  wholly  executory'  have  a 
right  to  the  maintenance  of  the  contractual  relations  up  to  the 
time  for  performance,  as  well  as  to  a  performance  of  the  eon- 
tract  when  due.  If  it  appear  that  the  party  who  makes  an  ab- 
solute refusal  intends  thereby  to  put  an  end  to  the  contract  so 
far  as  performance  is  concerned,  and  that  the  other  party  must 
accept  this  position,  why  should  there  not  be  speedy  action  and 
settlement  in  regard  to  the  rights  of  the  parties?  Why  should 
a  locus  poenitentice  be  awarded  to  the  party  whose  wrongful  ac- 
tion has  placed  the  other  at  such  disadvantage?  What  reason- 
able distinction  per  se  is  there  between  liability  for  a  refusal  to 
perform  future  acts  to  be  done  under  a  contract  in  course  of  per- 
formance and  liability  for  a  refusal  to  perform  the  whole  con- 
tract made  before  the  time  for  commencement  of  performance? 
«     *     * 

As  to  the  question  of  damages,  if  the  action  is  not  premature, 
the  rule  is  applicable  that  plaintiff  is  entitled  to  compensation 
based,  as  far  as  possible,  on  the  ascertainment  of  what  he  would 
have  suffered  by  the  continued  breach  of  the  other  party  down 
to  the  time  of  complete  performance,  less  any  abatement  by  rea- 
son of  circumstances  of  which  he  ought  reasonably  to  have 
availed  himself.  If  a  vendor  is  to  manufacture  goods,  and  dur- 
ing the  process  of  manufacture  the  contract  is  repudiated,  he 
is  not  bound  to  complete  the  manufacture,  and  estimate  his  dam- 
ages by  the  difference  between  the  market  price  and  the  contract 
price,  but  the  measure  of  damage  is  the  difference  between  the 
contract  price  and  the  cost  of  performance.  Hinckley  v.  Pitts- 
burgh Co.,  121  U.  S.  264.  Even,  if  in  such  cases  the  manufact- 
urer actually  obtains  his  profits  before  the  time  fixed  for  per- 
formance, and  recovers  on  a  basis  of  cost  which  might  have  been 
increased  or  diminished  by  subsequent  events,  the  party  who 
broke  the  contract  before  the  time  for  complete  performance 
cannot  complain,  for  he  took  the  risk  involved  in  such  anticipa- 
tion. If  the  vendor  has  to  buy  instead  of  to  manufacture,  the 
same  principle  prevails,  and  he  may  show  what  was  the  value  of 
the  contract  by  showing  for  what  price  he  could  have  made  sub- 
contracts, just  as  the  cost  of  manufacture  in  the  case  of  a  manu- 
facturer may  be  shown.     Although  he  may  receive  his  money 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  323 

earlier  in  this  way,  and  may  gain,  or  lose,  by  the  estimation  of 
his  damage  in  advance  of  the  time  for  performance,  still,  as  we 
have  seen,  he  has  the  right  to  accept  the  situation  tendered  him, 
and  the  other  party  cannot  complain. 

In  this  case  the  plaintiffs  showed  at  what  prices  they  could 
have  made  sub-contracts  for  forward  deliveries  according  to  the 
contracts  in  suit,  and  the  difference  between  the  prices  fixed  by 
the  contracts  sued  on  and  those  was  correctly  allowed. 

Judgment  affirmed. 


3)       CONTBACTS    TO    MANUFACTURE. 

(1)     Breach  of  Vendor. 
BEEMAN  V.  BANTA. 

New  York,  1890.       118  N.  Y,  538. 

Parker,  J.  The  recovery  in  this  action  was  for  damages 
claimed  to  have  been  sustained  because  of  a  breach  of  an  express 
warranty  on  the  part  of  the  defendant  to  so  construct  a  freezer 
for  the  plaintiffs  as  that  chickens  could  be  kept  therein  in  per- 
fect condition. 

The  jury  have  found  the  making  of  the  warranty,  its  breach 
and  the  amount  of  damages  resulting  therefrom.  The  General 
Term  have  affirmed  these  findings  and  as  there  is  some  evidence 
to  support  each  proposition,  we  have  but  to  consider  the  excep- 
tions taken. 

The  appellant  excepted  to  the  charge  of  the  court  respecting 
the  measure  of  damages.  Upon  the  trial  he  insisted,  and  still 
urges,  that  the  proper  measure  of  damages  is  the  cost  of  so 
changing  the  freezer  as  to  obviate  the  defect  and  make  it  con- 
form to  the  warranty,  and  N.  Y.  S.  Moniter  Milk  Pan  Co.  v. 
Eemington,  109  N.  Y.  143,  is  cited  in  support  of  such  contention. 
That  decision  was  not  intended  to,  nor  does  it  modify,  the  rule 
as  recognized  and  enforced  in  Passinger  v.  Thorburn,  34  N.  Y, 
634;  White  v.  IVtiller,  71  N.  Y.  133;  Wakeman  v.  Wheeler  & 
Wilson  Mfg.  Co.,  101  N.  Y.  205 ;  Reed  v.  ]\IcConnell,  101  N.  Y. 
276,  and  kindred  cases. 

In  that  case  the  argument  of  the  court  demonstrates:  First, 
that  improper  evidence  was  received ;  and  second,  that  the  find- 
ing of  the  referee  was  without  evidence  to  support  it.  No  other 
proposition  was  decided.  And  the  discussion  is  not  applicable 
to  the  facts  before  us. 


324  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

The  phiintilT  was  largely  eugaged  in  preparing  poultry  for 
market  wliieh  he  had  either  raised  or  purchased.  Before  meet- 
ing the  defendant  he  had  attempted  to  keep  chickens  for  the 
early  spring  market  in  a  freezer  or  cooler  which  he  liad  con- 
structed for  the  purpose.  The  attempt  was  unsuccessful  and 
resulted  in  a  loss.  The  jury  have  found  in  effect  that  the  de- 
fendant, with  knowledge  of  this  intention  of  the  plaintiff  to  at 
once  make  use  of  it  in  the  freezing  and  preservation  of  chickens 
for  the  ]\Iay  market  following,  expressly  represented  and  war- 
ranted that  for  about  $500  he  would  construct  a  freezer  which 
should  keep  them  in  perfect  condition  for  such  market. 

That  he  failed  to  keep  his  contract  in  such  respect,  resulting 
in  a  loss  to  the  plaintiff  of  many  hundred  pounds  of  chickens. 

The  court  charged  the  jury  that  if  they  should  find  for  the 
plaintiff,  he  was  entitled  to  recover,  as  one  of  the  elements  of 
damage,  the  difference  between  the  value  of  the  refrigerator  as 
constructed,  and  its  value  as  it  would  have  been  if  made  accord- 
ing to  contract.  The  correctness  of  this  instruction  does  not 
admit  of  questioning.  Had  the  defendant  made  no  use  of  the 
freezer,  such  rule  would  have  embraced  all  the  damages  recov- 
erable. But  he  did  make  use  of  it,  and  such  use  as  was  contem- 
plated by  the  contract  of  the  parties.  The  result  was  the  total 
loss  of  hundreds  of  pounds  of  chickens. 

The  fact  that  the  defendant  well  knew  the  use  to  which  the 
freezer  was  to  be  immediately  put,  his  representation  and  war- 
ranty that  it  would  keep  chickens  in  perfect  condition,  burdens 
him  with  the  damage  sustained  because  of  his  failure  to  make 
good  the  w^arrant}^ 

Upon  that  question,  the  court  instructed  the  jury  that  the 
plaintiff  was  entitled  to  recover  the  value  of  the  chickens  less 
cost  of  getting  them  to  market,  including  freight,  and  fees  of 
commission  merchant. 

The  question  of  value  was  left  to  the  jury,  but  they  were 
permitted  to  consider  the  evidence  tending  to  show  that  frozen 
chickens  were  worth  forty  cents  a  pound  in  the  market  during 
the  month  of  ^lay. 

Such  instruction  we  consider  authorized.  The  object  of  the 
freezer  was  to  preserve  chickens  for  the  May  market.  The  ex- 
pense of  construction,  and  trouble,  as  well  as  expense  of  op- 
eration, was  incurred  and  undertaken  in  order  to  secure  the 
enhanced  prices  of  the-  month  of  May.    It  was  the  extra  profit 


CONTRACTS   RELATING   TO    PERSONAL   PROPERTY.  325 

which  the  plaintiff  was  contracting  to  secure,  and  in  so  far  as 
the  profits  contemplated  by  the  parties  can  be  proven,  they  may 
be  considered.  Gains  prevented  as  well  as  losses  sustained  are 
proper  elements  of  damage.  (Wakeman  v.  Wheeler  &  Wilson 
Mfg.  Co.,  101  N.  Y.  205.) 

We  have  carefully  examined  the  other  exceptions  to  the 
charge  as  made  and  to  the  refusals  to  charge  as  requested,  and 
also  the  exceptions  taken  to  the  admissibility  of  testimony,  but 
find  no  error  justifying  a  reversal. 

The  insistence  of  the  appellant  that  the  judgment  be  reversed 
because  against  the  weight  of  evidence,  may  have  been  entitled 
to  some  consideration  by  the  General  Term,  but  it  cannot  be 
regarded  here. 

The  judgment  should  be  affirmed. 

All  concur,  except  Follett,  Ch.  J.,  and  Vann,  J.,  not  sit- 
ting. 

Judgment  affirmed. 


JORDAN  V.  PATTERSON. 

Connecticut,  1896.     67  Conn.  473. 

Andrews,  C.  J.  This  action  was  brought  to  recover  dam- 
ages for  the  nonperformance  of  a  contract.  The  plaintiffs  are 
large  dealers  in  dry  goods  at  wholesale  and  by  retail.  The  de- 
fendants are  manufacturers  of  knit  underwear.  The  complaint 
alleged  generally  that  on  the  16th  daj'  of  March,  1892,  the  de- 
fendants agreed  to  manufacture  for  the  plaintiffs  a  large  num- 
ber of  knit  undergarments,  of  various  styles  and  at  agreed 
prices,  amounting  in  the  whole  to  nearly  12,000  dozen,  and  to  de- 
liver the  same  at  various  times,  but  all  before  the  1st  day  of  De- 
cember, 1892,  for  which  the  plaintiffs  were  to  pay ;  that  the  plain- 
tiffs contracted  for  these  goods  with  the  intent,  as  the  defendants 
knew,  to  resell  the  same  to  other  parties ;  that  at  the  date  of 
said  contract  they  had  bargained  to  sell  a  part  of  said  garments 
to  other  persons  at  a  profit ;  that  afterwards,  and  before  the  time 
when  said  goods  were  to  be  delivered,  they  bargained  to  sell  the 
balance  of  the  same  to  certain  other  persons  at  a  profit ;  that  the 
defendants  delivered  to  the  plaintiffs,  in  pursuance  of  the  said 
agreement,  160  dozen  of  the  said  goods,  but  neglected  and  refused 
to  deliver  the  remaining  part, — and  claimed  damages  to  the 
amount  of  $10,000.    The  defendants'  answer  denied  the  making 


326  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

of  the  said  contract  alleged  by  the  plaintift's,  and  set  up  a  dif- 
ferent one,— a  conditional  one;  and  they  said,  that  in  perform- 
ance of  the  contract  so  alleged  by  them,  they  furnished  the  said 
160  dozen  of  said  garments,  but  that  the  plaintilfs  neglected  to 
perform  the  conditions  of  said  last-mentioned  contract  on  their 
part  to  be  performed,  and  therefore  they  (the  defendants) 
did  not  furnish  any  more  of  said  goods.  The  answer  also  de- 
manded pay  for  the  goods  the  defendants  had  so  furnished,  and 
damages  for  the  nonperformance  by  the  plaintiffs.     *     *     * 

The  case  was  tried  on  an  issue  closed  to  the  jury,  and  the  plain- 
tiffs had  a  verdict  for  an  amount  in  damages  which,  they  assert, 
is  very  much  less  than  they  are  entitled  to  have ;  and  they  have 
appealed  to  this  court,  alleging  various  errors  in  the  trial  court. 

Jn  the  light  of  the  undisputed  facts  in  this  case,  the  trial  judge 
should  have  instructed  the  jury  that  the  letter  of  March  16,  1892, 
was  an  acceptance  of  all  the  orders  named  in  it.  And,  as  there 
was  but  one  contract  claimed  to  exist  between  these  parties,  such 
instruction  would,  in  effect,  have  directed  them  to  exclude  from 
their  consideration  the  conditional  contract  claimed  by  the  de- 
fendants. 

The  general  intention  of  the  law  giving  damages  in  an  ac- 
tion for  the  breach  of  a  contract  like  the  one  here  in  question 
is  to  put  the  injured  party,  so  far  as  it  can  be  done  by  money,  in 
the  same  position  that  he  would  have  been  in  if  the  contract  had 
been  performed.  In  carrying  out  this  general  intention  in  any 
given  case,  it  must  be  remembered  that  the  altered  position  to  be 
redressed  must  be  one  directly  resulting  from  the  breach.  Any 
act  or  omission  of  the  complaining  party  subsequent  to  the 
breach  of  the  contract,  and  not  directly  attributable  to  it,  al- 
though it  is  an  act  or  an  omission  which,  except  for  the  breach, 
would  not  have  taken  place,  is  not  a  ground  for  damages.  In  an 
action  like  the  present  one,  to  recover  damages  against  the  vendor 
of  goods  for  their  nondelivery  to  the  vendee,  the  general  rule 
is  that  the  plaintiff  is  entitled  to  recover  in  damages  the  dif- 
ference at  the  time  and  place  of  delivery  between  the  price  he 
had  agreed  to  pay,  and  the  market  price,  if  greater  than  the 
agreed  price.  Such  difference  is  the  normal  damage  which  a 
vendee  suffers  in  such  a  case.  And,  if  there  are  no  special  cir- 
cumstances in  the  case,  a  plaintiff  would,  by  the  recovery  of 
such  difference,  be  put  in  the  same  position  that  he  would  have 
been  in  if  the  contract  had  been  performed.     This,  of  course, 


CONTRACTS   RELATING    TO   PERSONAL   PROPERTY.  327 

implies  that  there  is  a  market  for  such  goods,  where  the  plain- 
tiff could  have  supplied  himself.  If  there  is  no  such  market, 
then  the  plaintiff  should  recover  the  actual  damages  which  he  has 
suffered.  There  may  be,  and  often  there  are,  special  circum- 
stances, other  than  the  want  of  a  market,  surrounding  a  con- 
tract for  the  sale  and  purchase  of  goods,  by  reason  of  which,  in 
case  of  a  breach,  the  loss  to  a  vendee  for  their  nondelivery  is 
increased.  In  such  a  case  the  damages  to  the  vendee  which  he 
may  recover  must,  speaking  generally,  be  confined  to  such  as  re- 
sult from  those  circumstances  which  laiay  reasonably  be  supposed 
to  have  been  in  the  contemplation  of  the  parties  at  the  time  they 
made  the  contract.  It  must  be  remembered,  also,  in  attempting 
to  carry  out  this  general  intention  of  the  law  in  any  given  case, 
that  any  damages  which  the  plaintiff  by  reasonable  diligence  on 
his  part  might  have  avoided  are  not  to  be  regarded  as  the  prox- 
imate result  of  the  defendant's  acts.  In  the  present  case  the 
plaintiffs  claimed  that  at  the  time  of  delivery  there  was  no 
market  in  which  they  could  procure  such  goods  as  the  defendants 
were  to  deliver  to  them.  This  was  a  fact  which  might  be  proved 
by  the  testimony  of  any  person  who  had  knowledge  on  the  sub- 
ject. And  if  it  was  true  the  plaintiffs  could  not,  by  any  diligence 
on  their  part,  have  relieved  themselves  by  such  purchase  from 
any  portion  of  the  damages  which  they  suffered. 

There  were  various  special  circumstances  by  reason  of  which 
the  plaintiffs  claimed  to  recover  damages.  One  was  that  they 
contracted  for  the  said  goods  for  the  purpose  of  reselling  them. 
It  is  averred  in  the  complaint — and  there  appears  to  have  been 
evidence  on  the  trial  tending  to  prove  such  averments — that  at 
the  time  the  goods  were  contracted  for  the  plaintiffs  had  bar- 
gained to  sell  a  portion  of  the  said  garments  to  other  parties  at  a 
profit,  and  that  the  defendants  had  knowledge  of  the  subcon- 
tracts. As  to  the  profits  on  these  subsales,  the  judge  charged  the 
jury  that  the  plaintiffs  were  entitled  to  recover  these  as  a  part 
of  their  damages,  because,  as  the  judge  correctly  said,  the  ex- 
istence of  these  subsales  was  known  to  the  defendants  at  the 
time  they  contracted  to  furnish  the  goods,  and  the  profits  that 
were  to  be  made  must  be  considered  as  having  been  contemplated 
by  them  at  that  time. 

It  is  also  averred  in  the  complaint  that,  soon  after  the  time 
the  contract  was  made,  the  plaintiffs,  relying  on  the  same,  be- 
gan to  sell  the  balance  of  said  garments  to  other  parties  at  a 


328  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

profit,  of  which  subcontracts  they  gave  notice  to  the  defendants 
a  reasonable  time  before  the  date  at  which  the  goods  were  to 
be  delivered.  The  judge  charged  the  jury  that  these  profits 
should  not  be  allowed,  because,  as  he  said,  tiiese  sales  cannot  be 
considered  to  have  been  in  the  contemplation  of  the  parties  at 
the  time  they  made  their  contract.  As  the  judge  stated  it,  this 
ruling  was  correct.  Notice  to  the  defendants  after  their  contract 
was  entered  into  would  not  increase  their  liability.  If  these  sub- 
sales  could  not  reasonably  be  considered  to  have  been  in  the  con- 
templation of  the  parties  at  the  time  they  made  the  contract, 
then  the  defendants  could  not  be  made  liable  for  the  special 
profits  to  be  derived  therefrom. 

But  there  is  an  aspect  of  the  question  of  the  profits  on  these 
latter  subsales — which  seems  not  to  have  been  very  clearly  pre- 
sented— ^upon  which  the  evidence  of  their  terms  might  have  been 
admissible.  The  defendants  had  knowledge  that  the  plaintiffs 
contracted  for  these  garments  in  order  to  resell  them  to  others. 
They  were  chargeable  with  knowledge  that  the  plaintiffs  would 
make  such  profits  as  the  market  price  of  such  goods  would  give 
them.  If  proof  of  the  terms  of  these  last-mentioned  subsales  was 
offered  for  the  purpose  of  showing  what  the  market  price  of 
such  goods  was  at  the  time  they  were  to  be  delivered,  then  the 
evidence  should  have  been  received.  The  market  value  of  any 
goods  may  be  shown  by  actual  sales  in  the  way  of  ordinary  busi- 
ness. 

It  was  alleged  in  the  complaint  that  by  reason  of  the  default 
of  the  defendants  the  plaintiffs  had  been  obliged  to  pay  large 
damages  to  their  vendees  for  their  failure  to  deliver  to  them  the 
goods  so  bargained  to  them,  and  they  offered  evidence  to  prove 
such  a  paj^ment  to  one  of  their  vendees,  which  evidence  was,  on 
objection  by  the  defendants,  excluded.  In  respect  to  this  item 
of  damage,  the  rule  above  stated  furnished  the  proper  test.  In 
restoring  an  injured  party  to  the  same  position  he  would  have 
been  in  if  the  contract  had  not  been  broken,  it  is  necessary  to  take 
into  the  account  losses  suffered,  as  much  as  profits  prevented. 
And  whenever  the  loss  suffered,  or  the  gain  prevented,  results 
directly  from  a  circumstance  which  may  reasonably  be  consid- 
ered to  have  been  in  the  contemplation  of  the  parties  when  en- 
tering into  the  contract,  the  plaintiff  should  be  allowed  to  prove 
such  loss.  Whether  the  circumstance  from  which  the  loss  re- 
sults, or  the  gain  is  prevented,  is  or  is  not  one  which  may  be 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  329 

reasonably  considered  to  have  been  in  the  contemplation  of  the 
parties,  is,  from  the  necessities  of  the  case,  an  introductory  one, 
upon  which  the  judge  must,  in  the  first  instance,  decide,  before 
evidence  either  of  losses  suffered,  or  gains  prevented,  can  be 
shown  to  the  jury.  When  the  admissibility  of  evidence  depends 
upon  a  collateral  fact,  the  judge  must  pass  upon  that  fact  in  the 
first  place,  and  then,  if  he  admits  the  evidence,  instruct  the  jury 
to  lay  it  out  of  their  consideration  if  they  should  be  of  a  different 
opinion  as  to  the  preliminary  matter.  The  particular  evidence 
excluded  in  this  case  was  that  of  Edward  J,  Mitton,  one  of  the 
plaintiffs,  to  the  effect  that  the  plaintiffs  had  paid  to  William 
Taylor  &  Sons,  one  of  their  vendees,  the  sum  of  $641  as  dam- 
ages. Both  the  objection  to  this  evidence,  and  the  ruling  upon 
it,  seem  to  admit  that  this  subcontract  was  one  of  which  the 
defendants  had  notice.  The  objection  to  it  was  that  it  was  not 
admissible  under  any  allegation  in  the  complaint.  But  pre- 
cisely this  sort  of  loss  was  alleged  in  the  complaint  and  denied 
in  the  answer,  and,  unless  other  reasons  existed  for  the  exclusion 
of  this  testimony  than  the  one  claimed,  it  should  have  been  re- 
ceived. If  the  sale  to  Taylor  &  Sons  was  one  of  those  sales  of 
which  the  defendants  had  notice  at  the  time  they  made  their  con- 
tract with  the  plaintiffs,  then  the  evidence  was  clearly  ad- 
missible for  the  reason  given  by  the  trial  judge  when  instructing 
the  jury  that  the  profits  from  these  sales  should  be  allowed. 

For  the  purpose  of  proving  the  subsales,  the  plaintiffs  offered 
the  deposition  of  F.  R.  Chase,  one  of  their  traveling  salesmen. 
In  the  early  part  of  1892  he  was  sent  out  by  the  plaintiffs  to 
make  sales  by  sample  of  some  of  the  goods  which  the  defendants 
were  to  manufacture.  He  was  asked  if  he  knew  by  whom  these 
goods  were  to  be  manufactured.  He  said  he  did,  through  Mr. 
Campbell,  the  plaintiffs'  buyer.  This  question  and  answer 
were  objected  to  by  the  defendants,  and  ruled  out.  This  ob- 
jection seems  to  have  been  made  on  a  total  misapprehension  of 
the  object  of  the  evidence.  The  witness  was  stating  what  he 
was  to  represent  to  his  customers  as  to  the  manufacture  of  the 
goods  he  was  trying  to  sell  them.  Both  question  and  answer 
should  have  been  admitted.  Whether  or  not  the  goods,  when 
they  should  be  delivered,  corresponded  with  the  sample  and  with 
this  statement,  would  have  been  quite  another  question. 

One  Deland,  a  buyer  for  the  plaintiffs,  testified.  He  was 
asked,  respecting  certain  of  the  goods  which  the  defendants  had 


330  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

contracted  to  deliver  to  the  plaintiffs.  "At  what  price  would 
these  have  been  retailed?"  On  objection,  he  was  not  permitted 
to  answer.  Assuming  that  Deland  had  knowledge  of  the  market 
price  at  which  such  goods  would  have  been  sold,  it  is  very  ob- 
vious that  his  answer  would  have  been  relevant,  and  should  have 
been  received. 

The  other  questions  made  in  the  case,  so  far  as  they  are  mate- 
rial, would  not  be  likely  to  arise  on  another  trial.  There  is  error, 
and  a  new  trial  is  granted.    The  other  judges  concurred. 


(2)     Breach  of  Vendee. 

BEMENT  V.  SMITH. 
New  York,  1836.      15  Wend.  493. 

This  was  an  action  of  assumpsit,  tried  at  the  Seneca  circuit 
in  November,  1834,  before  the  Hon.  Daniel  Moseley,  one  of  the 
circuit  judges. 

In  March,  1834,  the  defendant  employed  the  plaintiff,  a  car- 
riage maker,  to  build  a  sulky  for  him,  to  be  worth  ten  dollars 
more  than  a  sulky  made  for  a  Mr.  Putnam;  for  which  he 
promised  to  pay  $80,  part  in  a  note  against  one  Joseph  Bement, 
a  brother  of  the  plaintiff,  for  the  sum  of  ten  or  eleven  dollars, 
and  the  residue  in  his  own  note,  at  six  or  twelve  months,  or  in 
the  notes  of  other  persons  as  good  as  his  own.  In  June,  1834, 
the  plaintiff  took  the  sulky  to  the  residence  of  the  defendant, 
and  told  him  that  he  delivered  it  to  him,  and  demanded  pay- 
ment, in  pursuance  of  the  terms  of  the  contract.  The  defendant 
denied  having  agreed  to  receive  the  carriage.  Whereupon  the 
plaintiff  told  him  he  would  leave  it  with  a  Mr.  De  Wolf,  residing 
in  the  neighborhood;  which  he  accordingly  did,  and  in  July, 
1834,  commenced  this  suit.  It  was  proved  that  the  value  of  the 
sulky  was  $80,  and  that  it  was  worth  $10  more  than  Putnam's. 
The  declaration  contained  three  special  counts,  substantially 
alike,  setting  forth  the  contract,  alleging  performance  on  the 
part  of  the  plaintiff,  by  a  delivery  of  the  sulky,  and  stating  a 
refusal  to  perform,  on  the  part  of  the  defendant.  The  declara- 
tion also  contained  a  general  count,  for  work  and  labor,  and 
goods  sold.  The  judge,  after  denying  a  motion  for  a  nonsuit, 
made  on  the  assumed  grounds  of  variance  between  the  declara- 
tion and  proof,  charged  the  jury  that  the  tender  of  the  cnr- 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  331 

riage  was  substantially  a  fulfillment  of  the  contract  on  the  part 
of  the  plaintiff,  and  that  he  was  entitled  to  sustain  his  action  for 
the  price  agreed  upon  between  the  parties.  The  defendant's 
counsel  requested  the  judge  to  charge  the  jury  that  the  measure 
of  damages  was  not  the  value  of  the  sulky,  but  only  the  expense 
of  taking  it  to  the  residence  of  the  defendant,  delay,  loss  of  sale, 
&c.  The  judge  declined  so  to  charge,  and  reiterated  the  instruc- 
tion that  the  value  of  the  article  was  the  measure  of  damages. 
The  jury  found  for  the  plaintiff,  with  $83.26  damages.  The  de- 
fendant moved  for  a  nevv'  trial.  The  cause  was  submitted  on 
written  arguments. 

By  the  court,  Savage,  Ch.  J.  The  defendant  presents  no  de- 
fence upon  the  merits.  His  defense  is  entirely  technical,  and 
raises  two  questions:  1.  Whether  the  tender  of  the  sulky  was 
equivalent  to  a  delivery,  and  sustained  the  averment  in  the  de- 
claration that  the  sulky  was  delivered :  and  2.  Whether  the  rule 
of  damages  should  be  the  value  of  the  sulky,  or  the  particular 
damages  to  be  proved,  resulting  from  the  breach  of  the  contract. 
There  is  no  question  raised  here  upon  the  statute  of  frauds.  The 
contract  is  therefore  admitted  to  be  a  valid  one;  and  relating 
to  something  not  in  solido  at  the  time  of  the  contract,  there  is 
no  question  of  its  validity. 

The  plaintiff  agreed  to  make  and  deliver  the  article  in  question 
at  a  particular  time  and  place,  and  the  defendant  agreed  to  pay 
for  it,  on  delivery,  in  a  particular  manner.  The  plaintiff  made, 
and,  as  far  as  was  in  his  power,  delivered  the  sulky.  He  offered 
it  to  the  defendant  at  the  place  and  within  the  time  agreed  upon. 
It  was  not  the  plaintiff's  fault  that  the  delivery  was  not  com- 
plete, that  was  the  fault  of  the  defendant.  There  are  many  cases 
in  which  an  offer  to  perform  an  executory  contract  is  tantamount 
to  a  performance.  This,  I  apprehend,  is  one  of  them.  The  case 
of  Towers  v.  Osborne,  1  Strange,  506,  was  like  this.  The  ques- 
tion here  presented  was  not  raised,  but  the  defendant  there 
sought  to  screen  himself  under  the  statute  of  frauds.  The  de- 
fendant bespoke  a  chariot,  and  when  it  was  made,  refused  to 
take  it ;  so  far  the  cases  are  parallel.  In  an  action  for  the  value, 
it  was  objected  that  the  contract  was  not  binding,  there  being 
no  note  in  writing,  nor  earnest,  nor  delivery.  The  objection 
was  overruled.  In  that  case  the  action  was  brought  for  the  value, 
not  for  damages  for  the  breach  of  contract.  This  case  is  like 
it  in  that  particular;  this  action  is  brought  for  the  value,  that 


332  DAMAGES    IN    ACTIONS   ON    CONTKACTS. 

is,  for  the  price  agreed  on ;  and  it  is  shown  that  the  sulky  was 
of  that  value.  The  case  of  Crookshank  v.  liurrell,  18  Johns. 
R.  58,  was  an  action  in  which  the  plaintiff  declared  against  the 
defendant  on  a  contract  whereby  the  plaintiif  was  to  make  the 
wootlwork  of  a  wagon,  for  which  the  defendant  was  to  pay  in 
lambs.  The  defendant  was  to  come  for  the  wagon.  The  ques- 
tion was  upon  the  statute  of  frauds.  Spencer,  Ch.  J.,  states 
what  had  been  held  in  some  of  the  English  cases,  Clayton  v. 
Andrews,  4  Burr.  2101,  and  Cooper  v.  Elston,  7  T.  R.  14,  that  a 
distinction  existed  between  a  contract  to  sell  goods  then  in  ex- 
istence, and  an  agreement  for  a  thing  not  yet  made.  The 
latter  is  not  a  contract  for  the  sale  and  purchase  of  goods, 
but  a  contract  for  work  and  labor  merely.  The  case  of 
Crookshank  v.  Burrell  is  much  like  this,  with  this  exception: 
there  the  purchaser  was  to  send  for  the  wagon;  here  the 
manufacturer  was  to  take  it  to  him.  There  it  was  held  that 
the  manufacturer  was  entitled  to  recover,  on  proving  that  he 
had  made  the  wagon  according  to  the  contract :  here  it  is  proved 
that  the  sulky  was  made,  and  taken  to  the  place  of  delivery  ac- 
cording to  contract.  The  merits  of  the  two  cases  are  the  same. 
It  seems  to  be  conceded  that  an  averment  of  a  tender  of  the 
sulky  by  the  plaintiff,  and  a  refusal  of  the  defendant  to  receive 
it,  would  have  been  sufficient ;  and  if  so,  it  seems  rather  technical 
to  turn  the  plaintiff  out  of  court,  when  he  has  proved  all  that 
would  have  been  required  of  him  to  sustain  his  action.  The 
plaintiff,  in  his  special  counts,  does  not  declare  for  the  sale  and 
delivery,  but  upon  the  special  contract;  and  herein  this  ease 
is  distinguishable  from  several  cases  cited  on  the  part  of  the 
defendant,  and  shows  that  it  was  not  necessary  to  have  declared 
for  goods  bargained  and  sold.  It  seems  to  me,  therefore,  that 
the  judge  was  right  in  refusing  the  nonsuit,  and  in  holding  that 
the  evidence  showed  substantially  a  fulfillment  of  the  contract. 
The  variance  as  to  the  amount  of  Joseph  Bement's  note,  I  think, 
is  immaterial ;  but  if  otherwise,  it  may  be  amended.  The  alleged 
variance  as  to  the  price  of  the  sulky  is  not  sustained  by  the  facts 
of  the  case. 

The  only  remaining  question,  therefore,  is  as  to  damages  which 
the  plaintiff  v/as  entitled  to  recover.  It  is  true  that  the  plaintiff 
does  not  recover  directly  as  for  goods  sold ;  but  in  the  case  of 
Towers  v.  Osborne  the  plaintiff  recovered  the  value  of  the  chari- 
ot, and  in  Crookshank  v.  Burrell  the  recovery  was  for  the  value 


CONTRACTS   RELATING    TO   PERSONAL   PROPERTY.  333 

of  the  wagon.  The  amount  of  damages  which  ought  to  be  re- 
covered was  not  the  question  before  the  court  in  either  of  those 
eases;  but  if  the  value  of  the  article  was  not  the  true  measure, 
we  may  infer  that  the  point  would  have  been  raised.  Upon 
principle,  I  may  ask,  what  should  he  the  rule?  A  mechanic 
makes  an  article  to  order,  and  the  customer  refuses  to  receive 
it :  is  it  not  right  and  just  that  the  mechanic  should  be  paid  the 
price  agreed  upon,  and  the  customer  left  to  dispose  of  the  ar- 
ticle as  he  may?  A  contrary  rule  might  be  found  a  great  em- 
barrassment to  trade.  The  mechanic  or  merchant,  upon  a  valid 
contract  of  sale,  may,  after  refusal  to  receive,  sell  the  article 
to  another,  and  sue  for  the  difference  between  the  contract  price 
and  the  actual  sale.  Sands  and  Crump  v.  Taylor  and  Lovett, 
5  Johns.  R.  395,  410,  411;  Langfort  v.  Tiler,  1  Salkeld,  113,  6 
Modem,  162.  In  the  first  of  these  cases,  the  plaintiffs  sold  the 
defendants  a  cargo  of  wheat.  The  defendants  received  part, 
but  refused  to  receive  the  remainder.  The  plaintiffs  tendered 
the  remainder,  and  gave  notice  that  unless  it  was  received  and 
paid  for,  it  would  be  sold  at  auction,  and  the  defendants  held 
responsible  for  any  deficiency  in  the  amount  of  sales.  It  was 
held,  upon  this  part  of  the  case,  that  the  subsequent  sale  of  the 
residue  was  not  a  waiver  of  the  contract,  the  vendor  being  at 
liberty  to  dispose  of  it  bona  fide,  in  consequence  of  the  refusal 
of  the  purchaser  to  accept  the  wheat.  This  case  shows  that  where 
there  has  been  a  valid  contract  of  sale,  the  vendor  is  entitled  to 
the  full  price,  whether  the  vendee  receive  the  goods  or  not.  I 
cannot  see  why  the  same  principle  is  not  applicable  in  this  case. 
Here  w^as  a  valid  contract  to  make  and  deliver  the  sulky.  The 
plaintiff  performed  the  contract  on  his  part.  The  defendant 
refused  to  receive  the  sulky  The  plaintiff  might,  upon  notice, 
have  sold  the  sulky  at  auction,  and  if  it  sold  for  less  than  $80, 
the  defendant  must  have  paid  the  balance.  The  reason  given  by 
Kent,  Ch.  J.,  5  Johns.  R.  411,  is  that  it  would  be  unreasonable 
to  oblige  him  to  let  the  article  perish  on  his  hands,  and  run  the 
risk  of  the  insolvency  of  the  buyer.  But  if  after  tender  or  no- 
tice, whichever  may  be  necessary,  the  vendor  chooses  to  run 
that  risk  and  permit  the  article  to  perish,  or,  as  in  this  ease,  if 
he  deposit  it  with  a  third  person  for  the  use  of  the  vendee,  he 
certainly  must  have  a  right  to  do  so,  and  prosecute  for  the  whole 
price.  Suppose  a  tailor  makes  a  garment,  or  a  shoemaker  a  pair 
of  shoes,  to  order,  and  performs  his  part  of  the  contract,  is  he 


334:  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

not  entitled  to  the  price  of  the  article  furnished  ?  I  think  he  is, 
and  that  the  plaintiff  in  this  ease  was  entitled  to  his  verdict! 

The  question  upon  the  action  being  prematurely  brought  be- 
fore the  expiration  of  the  credit  which  was  to  h;ive  been  giv- 
en, cannot  properly  arise  in  this  case,  as  the  plaintiff  recovers 
upon  the  special  contract,  and  not  upon  a  count  for  goods  sold 
and  delivered. 

New  trial  denied. 


HOSMER  V.  WILSON. 

Michigan,  1859.    7  Mich.  294. 

Assumpsit  "for  work  and  labour  done,  and  services  rendered, 
and  materials  furnished,  by  plaintiff  and  his  servants  for  defend- 
ants, all  at  request  of  said  defendants. ' '  Judgment  for  plaintiff, 
and  defendants  bring  error. 

It  appeared  that  one  of  defendants  had  called  at  plaintiff's 
foundry,  and  there  signed  a  written  order  for  an  engine,  to  be 
paid  for  when  taken  out  of  the  shop,  and  that  plaintiff's  clerk 
accepted  the  order;  that  plaintiff  then  proceeded  to  make  such 
engine,  and  only  stopped  when  he  received  a  letter  from  defend- 
ants countermanding  the  order. 

Christiancy,  J.  Whether  the  written  memorandum  signed 
by  the  defendants  below,  when  taken  in  connection  with  the 
whole  transaction  between  the  parties,  was  understood  by  all 
of  them  as  a  contract,  might  have  been  a  fair  question  of  fact 
for  the  jury.  But  admitting  the  contract  to  have  been  proved  in 
all  respects  as  claimed  by  the  plaintiff,  and  that  defendants 
below  wrongfully  countermanded  the  order  for  the  engine, 
after  the  plaintiff  had,  in  good  faith,  made  most  of  the  castings, 
and  done  a  large  part  of  the  work ;  the  first  question  which  arises 
is,  whether  the  plaintiff  was  entitled  to  recover  upon  the  com- 
mon counts  for  work  and  labor,  as  upon  a  quantum  meruit? 
As  to  the  materials  it  is  admitted  he  could  not,  though  con- 
tained in  the  same  count ;  as  they  still  belonged  to  plaintiff,  and 
were  never  delivered  to  defendants. 

In  the  case  of  a  contract  for  a  certain  amount  of  labor,  or 
for  work  for  a  specified  period — when  the  labor  is  to  be  per- 
formed on  the  materials  or  property,  or  in  carrying  on  the  busi- 
ness, of  the  defendant,  or  when  the  defendant  has  otherwise 
accepted  or  appropriated  the  labor  performed,  if  the  defendant 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  335 

prevent  the  plaintiff  from  performing  the  whole,  or  wrongfully 
discharge  him  from  his  employment,  or  order  him  to  stop  the 
work,  or  refuse  to  pay  as  he  has  agreed  (when  payments  be- 
come due  in  the  progress  of  the  work),  or  disable  himself  from 
performing,  or  unqualifiedly  refuse  to  perform  his  part  of  the 
contract,  the  plaintiff  may,  without  further  performance,  elect 
to  sue  upon  the  contract  and  recover  damages  for  the  breach,  or 
treat  the  contract  as  at  an  end,  and  sue  in  general  assumpsit  for 
the  work  and  labor  actually  performed:  Hall  v.  Rupley,  10 
Barr,  231;  Moulton  v.  Trask,  9  Mete,  579;  Derby  v.  Johnson, 
21  Vt.,  21 ;  Canada  v.  Canada,  6  Cush.,  15 ;  Draper  v,  Randolph, 
4  Harrington,  454;  Webster  v.  Enfield,  5  Gilm.,  298. 

And  in  such  cases  he  may,  it  would  seem,  under  the  common 
indebitatus  count,  recover  the  contract  price,  where  the  case 
is  such  that  the  labor  done  can  be  measured  or  apportioned  by 
the  contract  rate;  or  whether  it  can  be  so  apportioned  or  not, 
he  may  under  the  quantum  meruit  recover  what  it  is  reasonably 
worth.  But  in  all  such  cases,  the  plaintiff,  having  appropriated 
and  received  the  benefit  of  the  labor  (or,  what  is  equivalent, 
having  induced  the  plaintiff  to  expend  his  labor  for  him,  and, 
if  properly  performed  according  to  his  desire,  the  defendant 
being  estopped  to  deny  the  benefit),  a  duty  is  imposed  upon  the 
defendant  to  pay  for  the  labor  thus  performed.  This  duty  the 
law  enforces  under  the  fiction  of  an  implied  contract,  growing 
out  of  the  reception  or  appropriation  of  the  plaintiff's  labor. 

It  is  therefore  evident,  1st,  that  in  all  the  cases  supposed,  an 
implied  contract  would  have  arisen,  and  the  plaintiff  might  have 
recovered  upon  a  quantum  meruit,  if  no  special  contract  had 
ever  been  made;  2nd,  that  in  the  like  cases  (where  the  value  of 
the  work  done  could  not,  as  it  probably  could  not  in  the  case 
before  us,  be  apportioned  by  the  contract  price)  the  value  or  fair 
price  of  the  work  done,  would  necessarily  constitute  the  true 
measure  of  damages.  And  in  all  such  cases,  as  first  supposed, 
either  the  contract  price,  or  the  reasonable  worth  of  the  labor 
done,  would  measure  the  damages. 

Similar  considerations  and  like  rules  would,  doubtless,  equally 
apply  to  contracts  for  furnishing  materials,  and  for  the  sale  and 
delivery  of  personal  property,  when,  after  part  of  the  materials 
or  property  has  been  received  and  appropriated  by,  or  vested  in 
the  defendant,  he  has  prevented  the  plaintiff  from  performing, 


336  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

or  authorizing  liim  to  treat  the  contract  as  at  an  end,  on  any  of 
the  grounds  above  mentioned. 

But  the  case  before  us  stands  upon  very  diflferent  grounds. 
Here  the  contract,  as  chiiuied  to  have  been  i)roved,  was  in  no 
just  sense  a  contract  for  work  and  labor,  nor  could  the  plaintiff, 
while  at  work  upon  the  engine,  be  properly  said  to  be  engaged 
in  the  business  of  the  defendants.  It  was  substantially  a  con- 
tract for  the  sale  of  an  engine,  to  be  made  and  furnished  by  the 
plaintiff,  to  the  defendants,  from  the  shop,  and,  of  course,  from 
the  materials  of  the  plaintiff.  The  defendants  had  no  interest 
in  the  materials,  nor  any  concern  with  the  amount  of  the  labor. 
They  were  to  pay  a  certain  price  for  the  engine  when  completed. 
Engines,  it  is  true,  are  not  constructed  without  labor;  the 
labor,  ■  therefore,  constitutes  part  of  the  value  of  the  engine. 
But  this  would  have  been  equally  true  if  the  contract  in  this 
ease  had  been  for  an  engine  already  completed. 

The  labor  of  the  plaintiff  was  upon  his  own  materials,  to  in- 
crease their  value,  for  the  purpose  of  effecting  a  sale  to  defend- 
ants when  completed.  No  title  in  any  part  of  the  materials  was 
to  vest  in  defendants  till  the  whole  should  be  completed  by  plain- 
tiff, and  delivered  to  defendants.  The  plaintiff  might  have 
sold  any  of  the  materials,  after  the  work  was  performed,  or  the 
whole  engine  when  completed,  at  any  time  before  delivery  to,  or 
acceptance  by  defendants. 

Whether,  therefore,  the  labor  actually  performed  on  these 
materials,  when  the  defendants  refused  to  go  on  with  the  con- 
tract, or  prevented  the  further  performance,  had  enhanced  or 
diminished  the  value  of  the  materials,  and  how  much,  would  be 
a  necessary  question  of  fact,  in  arriving  at  any  proper  meas- 
ure of  damages.  The  value  of  the  work  and  labor  does  not; 
therefore,  in  such  a  case,  constitute  the  proper  criterion  or 
measure  of  damages.  If  the  value  of  the  materials  has  been  en- 
hanced by  the  labor,  the  plaintiff,  still  owning  the  materials, 
has  already'  received  compensation  to  the  extent  of  the  increased 
value;  and  to  give  him  damages  to  the  full  value  of  the  labor, 
would  give  him  more  than  a  compensation.  If  the  value  of  the 
materials  has  been  diminished,  the  value  of  the  labor  would  not 
make  the  compensation  adequate  to  the  loss.  It  would  be  only 
in  the  single  case  where  the  materials  have  neither  been  in- 
creased nor  diminished  by  the  labor,  that  the  value  of  the  labor 
would  measure  the  damages.     Such  a  case  could  seldom  occur. 


CONTRACTS    RELATING    TO    PERSONAL    PROPERTY.  337 

and  whether  it  could  or  not,  it  must  always  be  a  question  of  fact 
in  the  case,  whether  the  value  of  the  materials  does  remain  the 
same,  or  whether  it  has  been  increased,  or  diminished,  and  to 
what  extent. 

Again,  as  the  defendants  never  received  the  engine,  nor  any  of 
the  materials,  the  title  and  possession  still  remained  in  the  plain- 
tiff, and  the  defendants  never  having  received  or  appropriated 
the  labor  of  the  plaintiff,  if  the  same  work  had  been  performed 
under  the  like  circumstances,  without  any  actual  or  special  con- 
tract, the  law  would  have  imposed  no  duty  upon  the  defendants, 
and  therefore  implies  no  contract  on  their  part  to  pay  for  the 
work  done :  1  Cliit.  PI.,  382 ;  Atkinson  v.  Bell,  8  B.  &  C,  277 ; 
Allen  V.  Jarvis,  20  Conn.,  38. 

The  only  contract,  therefore,  upon  which  the  plaintiff  can  rely 
to  pay  him.  for  the  labor,  is  the  special  contract.  No  duty  is 
imposed  upon  the  defendants  otherwise  than  by  this.  This  con- 
tract, therefore,  must  form  the  basis  of  the  plaintiff's  action. 
He  must  declare  upon  it,  and  claim  his  damages  for  the  breach 
of  it,  or  for  being  wrongfully  prevented  from  performing  it. 
His  damages  will  then  be  the  actual  damages  which  he  has  suf- 
fered from  the  refusal  of  the  defendants  to  accept  the  articles, 
or  in  consequence  of  being  prevented  from  its  performance ;  and 
these  damages  may  be  more  or  less  than  the  value  of  the  labor. 
This  case,  therefore,  in  this  respect,  comes  directly  within  the 
principle  recognized  in  the  case  of  Atkinson  v.  Bell,  above  cited, 
and  in  Allen  v.  Jarvis,  20  Conn..  38  (a  well  reasoned  case,  which 
we  entirely  approve).  And  see  Moody  v.  Brown,  34  Me.,  107, 
where  the  same  principle  is  recognized. 

But  it  was  claimed  by  plaintiff's  counsel  that  no  action  could 
have  been  maintained  on  the  special  contract  imtil  fully  per- 
formed, and  the  engine  delivered  or  tendered  to  the  defendants ; 
that  the  unqualified  refusal  of  the  defendants  to  take  the  engine, 
when  it  rshould  be  completed,  was  not  a  prevention  of  perform- 
ance which  would  authorize  the  plaintiff  to  sue  upon  the  con- 
tract on  that  ground.  We  think  it  was,  and  that  such  absolute 
refusal  is  to  be  considered  in  the  same  light,  as  respects  the 
plaintiff's  remedy,  as  an  absolute,  physical  prevention  by  the 
defendants.  This  view  will  be  found  fully  sustained  by  the  fol- 
lowing cases:  Cort  v.  Ambergate  Railway  Co.,  6  E.  L.  &  Eq., 
230;  Derby  v.  Johnson,  21  Vt..  21;  Clark  v.  Marsiglia,  1  Denio, 
317 ;  Hochster  v.  De  Latour,  20  E.  L.  &  Eq.,  157.    In  the  latter 

22 


338  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

case,  it  was  held  that  a  refusal  of  the  employer  before  the  work 
commenced,  to  allow  it  to  be  done,  authorized  an  immediate  ac- 
tion upon  the  contract. 

So,  a  refusal  to  make  any  payment,  which,  by  the  contract, 
is  to  be  made  during  the  progress  of  the  work,  has  the  same 
effect:  Draper  v.  Randolph,  above  cited;  and  see  Iloagland  v. 
Moore,  2  Blackf.,  167 ;  Webster  v.  Enfield,  5  Gilm.,  298 ;  Withers 
V.  Reynolds,  2  B.  &  Ad.,  882.  See  this  whole  subject  ably  dis- 
cussed, and  the  authorities  cited,  in  2  Smith's  Lead.  Cas.  (Amer. 
Edit.),  22  to  38;  and  for  what  will  amount  to  prevention,  see 
note  of  Hare  &  Wallace  to  same,  40.  As  to  mode  of  declaring 
on  the  contract :    Ibid.,  41,  and  1  Chit.  PI.,  326. 

It  would  be  unreasonable  and  unjust  to  hold  that  the  plain- 
tiff, in  this  case,  after  the  positive  countermand  of  the  defend- 
ants' order,  was,  nevertheless,  bound  to  go  on  and  complete  the 
engine,  and  thereby  increase  the  damages,  before  he  could  re- 
cover for  the  work  already  done.  The  defendants  cannot  com- 
plain that  the  plaintiff  has  given  credit  to  their  assertion.  The 
law  will  not  require  a  vain  thing.  And  it  is  certainly,  in  such 
cases,  much  better  for  both  parties  to  hold  the  party  thus  no- 
tified to  be  fully  justified  in  stopping  the  work,  as  it  lessens 
the  damages  the  other  party  has  to  pay,  and  relieves  the  party 
who  has  to  do  the  work  from  expending  further  labor,  for  which 
he  has  fair  notice  he  is  to  expect  no  payment.  And  it  is  cer- 
tainly very  questionable  whether  the  part}^  thus  notified  has  a 
right  to  go  on  after  such  notice,  to  increase  the  amount  of  his  own 
damages.  In  Clark  v.  Marsiglia,  above  cited,  it  was  held  he  had 
no  such  right,  and  that  the  employer  has  a  right  (in  a  contract 
for  work  and  labor)  to  stop  the  work,  if  he  choose,  subjecting 
himself  to  the  consequences  of  a  breach  of  his  contract,  and 
that  the  workman,  after  notice  to  quit  work,  has  no  right  to  con- 
tinue his  labor,  and  recover  pay  for  it.  This  doctrine  is  fully 
approved  in  Derby  v.  Johnson,  above  cited.  This  would  seem  to 
be  good  sense,  and,  therefore,  sound  law.  And  it  would  seem 
that  any  other  rule  must  tend  to  the  injury,  and,  in  many  cases, 
to  the  ruin  of  all  parties. 

It  is  unnecessary  here  to  review  the  authorities  cited  by  the 
plaintiff's  counsel.  Most,  if  not  all  of  them,  when  carefully  ex- 
amined, will  be  found  entirely  in  harmony  with  the  views  above 
expressed.  The  result  of  them  will  be  found  well  and  fairly 
stated,  and  evidently  from  a  careful  examination,  in  Allen  v. 


CONTRACTS    RELATING   TO    PERSONAL    PROPERTY.  339 

Jarvis,  above  cited.  I  have  made  the  same  examination,  and 
come  to  the  same  result. 

It  may,  however,  be  proper  here  to  say,  that  in  the  case  of 
Planche  v.  Colburn,  8  Bing.,  14,  upon  which  much  reliance  was 
placed  by  the  counsel  for  the  defendant  in  error,  there  was  a  spe- 
cial count  upon  the  contract,  as  well  as  the  common  counts,  and  it 
may  be  inferred  from  the  opinion  that  the  plaintiff  was  allowed 
to  retain  his  verdict  upon  the  special  count.  And  we  have  the 
high  authority  of  Lord  Campbell  that  such  was  the  case.  See 
Hochster  v.  De  Latour,  20  E.  L.  &  Eq.  163,  above  cited.  As  the 
conclusion  at  which  we  have  arrived  upon  this  point  disposes  of 
the  whole  case,  it  becomes  unnecessary,  and  even  improper  to 
discuss  the  other  questions  raised  in  the  case. 

And,  as  we  do  not  conceive  that  under  a  writ  of  error  we  have 
any  power  to  amend  the  declaration  in  this  respect,  the  judg- 
ment must  be  reversed. 

The  other  Justices  concurred. 


BALLENTINE  v.  ROBINSON. 

Pennsylvania,  1S63.       46  Pa.  177. 

Assumpsit  by  William  C.  Robinson  and  others,  doing  business 
as  Robinson,  Douglas  &  Millers,  against  Nathaniel  Ballentine 
and  George  Hutchinson,  partners  trading  as  Hutchinson  &  Bal- 
lentine.    Judgment  for  plaintiffs,  and  defendants  bring  error. 

Strong,  J.— The  parties  entered  into  a  contract  by  which  it 
was  stipulated  that  the  plaintiffs  should  furnish  the  materials 
and  construct  for  the  defendants  a  steam-engine  of  a  described 
pattern,  for  which  the  defendants  engaged  to  pay  the  sum  of 
$535  on  its  completion.  The  engine  having  been  finished  pur- 
suant to  the  contract,  and  notice  of  its  completion  having  been 
given  to  the  defendants,  they  refused  to  pay  the  stipulated  price. 
Hence  this  suit,  in  which  the  only  question  raised  is,  what  is  the 
correct  measure  of  damages  for  such  a  breach  of  contract.  That 
the  i^laintiffs  had  done  all  they  were  bound  to  do,  that  they  had 
the  engine  ready  for  actual  delivery,  on  payment  of  the  sum 
agreed  to  be  paid  by  the  defendants,  and  that  the  defendants 
were  under  obligation  to  take  it  away  and  make  payment,  are 
established  facts.  It  is  now  contended  that  the  measure  of  dam- 
ages recoverable  is  the  difference  between  the  price  contracted  to 


340  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

be  paid  for  the  engine  and  the  market  price  at  the  time  the  eun- 
tract  was  broken. 

"Where  a  sale  of  goods  has  been  made  and  they  have  been  de- 
livered, it  is  plain  the  measure  of  damages  for  nonpayment  is 
the  stipulated  price.  About  that  there  is  no  ditiiculty.  Doubts, 
however,  have  been  entertained,  where  goods  have  been  sold  and 
not  delivered  in  consequence  of  the  refusal  of  the  buyer  to  com- 
plete the  contract.  It  has  sometimes  been  said  the  standard  for 
measurement  is  the  excess  of  the  contract  price  over  the  market 
value.  Yet  where  the  subject  of  the  sale  is  a  specific  article, 
where  the  contract  has  been  so  far  completed  as  to  pass  the  prop- 
erty in  the  article  to  the  vendee,  the  possession  being  retained 
only  because  the  price  is  not  paid,  there  seems  to  be  no  good  rea- 
son why  the  vendor  should  not  be  permitted  to  recover  the 
agreed  value.  He  has  fully  complied  with  all  that  he  was  un- 
der obligation  to  do.  He  has  parted  with  his  property,  and 
given  the  full  equivalent  for  the  stipulated  price.  His  right  to 
the  property  having  passed  to  the  vendee,  his  right  to  the  price 
would  appear  to  be  consummate.  It  is  true,  if  the  sale  be  for 
cash,  the  vendor  may  treat  the  goods  as  his  own  and  sell  them, 
on  failure  of  the  vendee  to  pay,  in  which  case  he  can  claim  only 
the  difference  between  the  price  for  which  he  has  sold,  and  the 
price  promised  to  be  paid  by  the  first  vendee.  That  difference 
completes  his  compensation.  But  the  resale  is  only  a  mode  of 
giving  effect  to  his  lien.  It  is  not  a  rescission  of  the  contract,  so 
as  to  revest  the  property  in  the  article  sold  in  him,  for  if  it  were, 
he  could  not  sue  for  the  deficiency.  The  law  does  not  compel 
him  to  resume  the  ownership  of  the  property,  and,  of  course,  it 
ought  not  to  take  away  his  right  to  the  price. 

The  present  is  not  strictly  the  case  of  a  sale.  The  plaintiffs 
agreed  to  build  the  engine  according  to  directions  of  the  defend- 
ants, and  to  furnish  the  necessary  materials  for  it.  When  it 
was  completed  the  defendants  had  notice,  and  were  bound  to 
take  it  away  and  pay  the  contract  price ;  but  instead  of  taking 
it  and  paying  the  price,  they  requested  the  plaintiffs  to  sell  it. 
In  such  a  case  the  right  of  property  was  clearly  in  them  on  no- 
tice of  the  completion  of  the  article.  The  materials  of  which  it 
was  composed  may  fairly  be  said  to  have  been  delivered  when 
they  were  put  into  the  engine.  The  defendants  alone  were  in 
default.  They  ought  not  to  be  permitted  to  compel  the  plaintiffs 
to  purchase  from  them.    Retaining  a  lien  on  the  engine  for  the 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  341 

price,  the  plaintiffs  were  at  liberty  to  sell  it  anew,  or,  at  their 
election,  to  obtain  full  compensation  from  the  defendants  for 
their  breach  of  contract.  There  can  be  no  just  reason  why  they 
should  be  compelled  to  accept  the  engine  as  part  payment,  which 
they  virtually  must  do  if  they  can  recover  only  the  difference  be- 
tween its  market  value  and  the  sum  the  defendants  agreed  to 
pay.  And  why  should  they,  without  any  default  of  their  own, 
be  subjected  to  the  risk  and  trouble  of  a  resale,  for  the  defend- 
ants' benefit?  Besides,  it  may  well  be,  that  the  article  manufac- 
tured according  to  order  may  have  no  market  value,  and  would 
be  worthless  on  the  manufacturers'  hands.  This  engine  was  not 
made  for  sale  in  the  market.  It  was  built  according  to  instruc- 
tions given  by  the  defendants,  and,  it  may  be  presumed,  for  their 
peculiar  use.  The  just  rule,  therefore,  plainly  is,  in  such  a  case, 
where  the  manufacturer  of  an  article  ordered,  has  completed  it, 
and  given  notice  of  its  completion,  that  he  should  be  allowed  to 
sue  for  the  value,  and  recover,  as  its  measure,  the  contract  price. 
And  such  is  the  doctrine  laid  do^v'n  in  the  better  decisions.  Thus 
it  was  decided  in  Bement  v.  Smith,  15  Wendell,  493,  where  the 
eases  are  revicAved,  and  the  rule  is  thus  stated  in  2  Parsons  on 
Contracts  483,  and  in  Sedgwick  on  Damages  281. 

The  instruction  given  in  the  court  below  w^as  therefore  right. 

The  judgment  is  affirmed. 


SHAWHAN  V.  VAN  NEST. 

Ohio,  1874.      25  Ohio,  490. 

Motion  for  leave  to  file  a  petition  in  error. 

Action  by  Peter  Van  Nest  against  Reasin  W.  Shawhan  to  re- 
cover on  a  contract  by  which  he  agreed  to  make  for  Shawhan  a 
carriage  in  accordance  with  his  directions  for  $700,  and  have  the 
same  ready  for  delivery  at  his  shop  October  1,  1871,  in  con- 
sideration whereof  Shawhan  agreed  to  accept  the  carriage  at  the 
shop  and  pay  the  agreed  price.  He  alleged  the  tender  of  the  car- 
riage October  1st,  and  the  refusal  of  Shawhan  to  accept  or  pay 
for  it.  The  evidence  established  the  allegations  of  the  complaint. 
The  court  instructed  the  jury  that,  if  they  found  the  issues  for 
the  plaintiff,  they  should  give  him  a  verdict  for  the  contract 
price  of  the  carriage,  with  interest  from  the  time  the  money 
should  have  been  paid.  Shawhan  requested  the  court  to  give  to 
the  jury  the  following  special  instructions:    (1)    "If,  in  this 


342  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

case,  tho  oviilrm'c  shows  that  tlie  dciViidant  ordered  the  plaintiff 
to  iiiaki'  foi-  liim  a  carriage,  and  agreed  to  take  or  receive  it, 
when  linished,  at  the  phiintifT's  shop,  and  to  pay  a  reasonable 
price  therefor,  and  the  plaintift'  did,  in  pursuance  of  such  order 
and  agreement,  make  such  carriage,  of  the  value  of  seven  hun- 
dred dollars,  and  have  the  same  in  readiness  for  delivery  at  his 
shop,  of  which  the  defendant  had  notice,  and  the  defendant 
then  failed,  neglected,  and  refused  to  take,  receive,  or  pay  for 
said  carriage,  though  requested  so  to  do  by  the  plaintiff,  these 
will  not  authorize  you  to  render  a  verdict  for  the  plaintiff  for 
the  price  or  value  of  the  carriage."  (2)  "If  the  plaintiff  has 
proved  the  making  of  the  carriage  for  the  defendant,  and  the 
refusal  of  the  latter  to  receive  and  pay  for  it,  as  alleged  in  the 
petition,  then  he  can  only  recover  for  the  damages  or  losses  he 
has  actually  sustained  by  reason  of  this  refusal  of  the  defend- 
ant, which  is  the  difference  between  the  agreed  price  and  the 
actual  value."  These  instructions  the  court  refused  to  give, 
and  Shawhan  excepted.  The  jury  found  for  Van  Nest,  and 
gave  him  the  contract  price  of  the  carriage,  with  interest. 

GiLMORE,  J.  The  only  question  to  be  determined  in  this  ease 
is :  Did  the  court  err  in  refusing  to  give  to  the  jury  the  special 
instrnctions  requested  by  the  defendant  on  the  trial  below?  The 
authorities  cited  by  counsel  for  the  parties  respectively,  are  not 
in  harmony  with  each  other  on  this  question.  Some  of  those 
cited  by  the  plaintiff  in  error  (defendant  below)  show  clearly 
that  under  the  pleadings  and  practice  at  common  law,  there 
could  be  no  recovery  under  the  common  counts  in  assumpsit,  for 
goods  sold  and  delivered,  or  for  goods  bargained  and  sold,  where 
no  delivery  sufficient  to  pass  the  title  from  the  vendor  to  the 
vendee  had  been  made.  And  further,  that  in  this  form  of  action, 
proof  of  a  tender  of  the  goods  by  the  vendor  to  the  vendee,  or 
leaving  them  with  him  against  his  remonstrance,  would  not  con- 
stitute such  a  delivery  as  would  pass  the  title  and  enable  the  ven- 
dor to  recover.  While  these  may  be  regarded  as  settling  the  rules 
of  pleading  and  evidence  on  the  trial  of  particular  cases,  and 
therefore  not  decisive  of  the  question  when  raised  under  issues  so 
formed  as  to  present  it  freed  from  the  technicalities  of  pleading, 
still  there  are  other  cases  cited  on  the  same  side,  which  declare 
the  rule  to  be  as  follows:  Where  an  action  is  brought  by  the 
vendor  against  the  vendee,  for  refusing  to  receive  and  pay  for 
goods  purchased,  the  measure  of  damages  is  the  actual  loss  sus- 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  343 

tained  by  the  vendor  in  consequence  of  the  vendee  refusing  to 
take  and  pay  for  the  goods,  or,  in  other  words,  the  difference  be- 
tween the  contract  price  and  the  market  price  at  the  time  and 
place  of  delivery.  In  the  authorities  cited  by  the  plaintiff  in  er- 
ror, no  distinction  is  drawn,  or  attempted  to  be  dra\^Ti,  between 
the  sale  of  goods  and  chattels  already  in  existence,  and  an  agree- 
ment to  furnish  materials  and  manufacture  a  specific  article  in  a 
particular  way,  and  according  to  order,  which  is  not  yet  in  ex- 
istence; the  theory  being,  that  in  neither  case  would  the  title 
pass,  or  property  vest  in  the  purchaser,  until  there  had  been  an 
actual  deliver}^,  and  that  until  the  title  had  passed,  the  vendor's 
remedy  M'as  limited  to  the  damages  he  had  suffered  by  reason  of 
the  breach  of  the  contract  by  the  vendee,  which  were  to  be  meas- 
ured by  the  rule  above  stated.  In  this  case  it  is  not  necessary  to 
determine  whether  or  not  a  distinction,  resting  upon  principles 
of  law,  can  be  drawn  between  ordinary  sales  of  goods  in  existence 
and  on  the  market,  and  goods  made  to  order  in  a  particular  way, 
in  pursuance  of  a  contract  between  the  vendor  and  vendee.  The 
case  here  is  of  the  latter  kind,  and  the  question  is,  whether  the 
plaintiff  below  was  entitled  to  recover  the  contract  price  of  the 
carriage,  on  proving  that  he  had  furnished  the  materials,  and 
made  and  tendered  it  in  pursuance  of  the  terms  of  the  contract. 

Counsel  for  the  defendant  in  error  (plaintiff  below)  has  cited 
a  number  of  authorities,  in  which  the  questions  presented  and  de- 
cided arose  upon  facts  similar  to  those  in  this  case,  and  upon  is- 
sues presenting  the  question  in  the  same  way ;  and  as  the  conclu- 
sions we  have  arrived  at,  are  based  upon  this  class  of  authori- 
ties, some  of  them  may  be  particularly  noticed. 

In  Bement  v.  Smith,  15  Wend.  493,  the  defendant  employed 
the  plaintiff,  a  carriage-maker,  to  build  a  sulky  for  him,  for  which 
he  promised  to  pay  eighty  dollars.  The  plaintiff  made  the  sulky 
according  to  contract,  and  took  it  to  the  residence  of  the  de- 
fendant, and  told  him  he  delivered  it  to  him,  and  demanded  pay- 
ment, in  pursuance  of  the  terms  of  the  contract.  The  defendant 
refused  to  receive  it.  Whereupon  the  plaintiff  told  him  he 
would  leave  it  with  Mr.  De  Wolf,  who  lived  near;  which  he  did, 
and  commenced  suit.  On  the  trial  it  was  proved  the  sulky  was 
worth  eighty  dollars,  the  contract  price.  The  court  charged  the 
jury,  that  the  tender  of  the  carriage  was  substantially  a  fulfill- 
ment of  the  contract  on  the  part  of  the  plaintiff,  and  that  he  was 
entitled  to  sustain  his  action  for  the  price  agreed  upon  between 


344  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

the  parties.  The  defendant's  counsel  requested  the  court  t& 
charge  the  jury  that  the  measure  of  damages  was  not  the  sulky, 
but  only  the  expense  of  taking  it  to  the  residence  of  the  defend- 
ant, delay,  loss  of  sale,  etc.  The  judge  declined  to  so  charge,  and 
reiterated  the  instruction  that  the  value  of  the  article  was  the 
measure  of  damages.  The  jury  found  for  the  plaintiff,  with 
eighty-three  dollars  and  twenty-six  cents  damages,  being  the  con- 
tract price  with  interest.  The  charge  to  the  jury  was  sustained 
by  the  supreme  court  of  New  York. 

In  Ballentine  et  al.  v.  Robinson  et  al.,  46  Penn,  St.  177,  an 
agreement  was  made  between  the  plaintiffs  and  defendants, 
whereby  the  plaintiffs  were  to  provide  materials,  and  construct 
for  the  defendants  a  six-inch  steam-engine,  with  boiler  and  Gif- 
ford  injector  and  heater,  in  consideration  whereof  the  defend- 
ants were  to  pay  plaintiffs  five  hundred  and  thirty-five  dollars 
in  cash  on  the  completion  thereof.  The  plaintiffs  complied  with 
and  completed  the  contract  in  all  respects  on  their  part,  but  the 
defendants  refused  to  pay  according  to  contract.  On  the  trial, 
the  plaintiffs  proved  the  contract,  and  the  performance  of  it 
on  their  part,  and  that  the  engine  was  still  in  their  hands. 

The  defendants'  counsel  asked  the  court  to  instruct  the  jury 
"that  the  proper  measure  of  damages  in  this  case  is  the  dif- 
ference between  the  price  contracted  to  be  paid  for  the  engine 
and  the  market  price  at  the  time  the  contract  was  broken. ' '  The 
court  declined  to  charge  as  requested,  and  instructed  the  jury 
that  the  measure  of  damages  was  the  contract  price  of  the  engine, 
with  interest.  There  was  a  verdict  for  the  plaintiffs  for  the 
contract  price.  The  case  was  taken  to  the  supreme  court,  and  the 
error  assigned  was  the  refusal  of  the  court  to  give  the  instruc- 
tions requested  by  the  defendant. 

The  supreme  court  affirmed  the  judgment  in  the  case  below. 
It  will  be  seen  that  these  cases  are  very  similar,  and  presented 
the  same  question,  and  in  the  same  manner  that  the  question  is 
presented  in  this  case.  Graham  v.  Jackson,  14  East,  498,  decides 
the  point  in  the  same  way.  Mr.  Sedgwick,  in  his  work  on  Dam- 
ages, side  page  280,  in  speaking  on  this  subject,  says:  "Where 
a  vendee  is  sued  for  nonperformance  of  the  contract  on  his  part, 
in  not  paying  the  contract  price,  if  the  goods  have  been  delivered, 
the  measure  of  damages  is  of  course  the  price  named  in  the 
agreement;  but  if  their  possession  has  not  been  changed,  it  has 
been  doubted  whether  the  rule  of  damages  is  the  price  itself,  or 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  345 

only  the  difference  between  the  contract  price  and  the  value  of 
the  article  at  the  time  fixed  for  its  delivery.  It  seems  to  be  well 
settled  in  such  cases  that  the  vendor  can  resell  them,  if  he  sees  fit, 
and  charge  the  vendee  with  the  difference  between  the  contract 
price  and  that  realized  at  the  sale.  Though  perhaps  more  pru- 
dent it  is  not  necessary  that  the  sale  sliould  be  at  auction;  it 
is  only  requisite  to  show  that  the  property  was  sold  for  a  fair 
price.  But  if  the  vendor  does  not  pursue  this  course,  and,  with- 
out reselling  the  goods,  sues  the  vendee  for  his  breach  of  con- 
tract, the  question  arises  which  we  have  already  stated,  whether 
the  vendor  can  recover  the  contract  price,  or  only  the  difference 
between  that  price  and  the  value  of  the  goods  which  remain  in 
the  vendor's  hands;  and  the  rule  appears  to  be  that  the  vendor 
can  recover  the  contract  price  in  full. ' ' 

In  Hadly  v.  Gano  et  al.,  Wright,  554,  the  action  was  "as- 
sumpsit on  a  written  agreement  between  the  parties,  for  the  de- 
fendants to  take  all  the  salt  the  plaintiff  manufactured  between 
the  2d  of  June,  1831,  and  the  1st  of  January,  1832,  to  be  deliv- 
ered at  the  landing  in  Cincinnati,  from  time  to  time,  as  the 
navigation  of  the  Muskingum  and  Ohio  should  permit,  and  to 
pay  forty-five  cents  a  bushel."  The  plaintiff  proved  the  agree- 
ment, and  the  offer  to  deliver  to  the  defendants  three  hundred 
and  fifty  barrels  of  salt,  which  the  defendants  refused  to  re- 
ceive. There  was  an  issue  in  the  case,  as  to  whether  the  contract 
had  been  previously  fulfilled  and  abandoned  by  the  parties.  The 
court  (Lane,  J.)  charged  the  jury  that  if  the  contract  had  not 
been  "fulfilled  or  abandoned,  and  the  plaintiff  tendered  the  salt 
under  the  contract,  which  was  refused,  he  had  a  right  to  leave  it 
for  the  defendants  and  recover  the  value. ' ' 

The  only  case  I  have  examined  in  which  the  authorities  on 
this  point  are  reviewed,  is  that  of  Gordon  v.  Norris,  49  N.  H.  376. 
The  case  is  too  lengthy  and  complicated  to  attempt  to  give  an  ab- 
stract of  it  here,  but  the  point  under  consideration  was  involved ; 
and  although  the  learned  .judge  criticises  the  law  as  laid  do^^•n 
by  Mr.  Sedgwick,  and  even  shows  that  the  authorities  he  quotes  in 
support  of  his  position  do  not  sustain  him,  for  the  reason  pointed 
out,  yet  he  says  that  there  is  a  distinction  between  the  case  of 
Beraent  v.  Smith,  and  the  ordinary  cases  of  goods  sold  and  de- 
livered— viz.,  "the  distinction  between  a  contract  to  sell  goods 
then  in  existence,  and  an  agreement  to  furnish  materials  and 
manufacture  an  article  in  a  particular  way  and    according  to 


346  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

order,  which  is  not  yet  in  existence."  lie  reco{^nizes  Beiuent's 
Case  and  others  of  the  same  class  as  exceptions  to  the  general 
rnle  which  is  to  be  applied  in  the  sale  of  ordinary  goods  and  mer- 
chandise which  have  a  fixed  market  value;  and  in  the  syllabus 
of  the  case,  the  distinction  is  kept  up  and  stated  as  follows : 

"When  the  vendee  refuses  to  receive  and  pay  for  ordinary 
goods,  wares,  and  merchandise,  which  he  has  contracted  to  pur- 
chase, the  measure  of  damages  which  the  vendor  is  entitled  to  re- 
cover is  not  ordinarily  the  contract  price  for  the  goods,  but  the 
difference  between  the  contract  price  and  the  market  price  or 
value  of  the  same  goods  at  the  time  when  the  contract  was 
broken. 

' '  But  when  an  artist  prepares  a  statue  or  picture  of  a  particu- 
lar person  to  order,  or  a  mechanic  makes  a  specific  article  in  his 
line  to  order,  and  after  a  particular  measure,  pattern,  or  style,  or 
for  a  particular  use  or  purpose — when  he  has  fully  performed  his 
part  of  the  contract,  and  tendered  or  offered  to  deliver  the  article 
thus  manufactured  according  to  contract,  and  the  vendee  refuses 
to  receive  and  pay  for  the  same,  he  may  recover  as  damages,  in 
an  action  against  the  vendee  for  breach  of  the  contract,  the  full 
contract  price  of  the  manufactured  article." 

As  has  been  said,  we  are  not  called  upon  now  to  determine 
whether  the  distinction  as  drawn  in  the  clauses  quoted,  is  sound 
on  principle  or  not ;  but  be  that  as  it  may,  we  recognize  the  law 
applicable  to  the  case  before  us  as  being  correctly  stated  in  the 
clause  last  quoted. 

Judge  Swan,  in  his  excellent  ''Treatise,"  (10th  ed.  780),  in 
speaking  of  the  effects  of  a  tender  upon  the  rights  of  the  buyer 
and  seller,  and  of  the  damages  in  such  case,  says :  ' '  The  general 
rule  in  relation  to  the  rights  of  a  seller,  under  a  contract  of 
sale,  where  he  has  tendered  the  property,  and  the  buyer  refuses  to 
receive  it,  is  this :  The  seller  may  leave  the  property  at  some  se- 
cure place,  at  or  near  the  place  where  the  tender  ought  to  be 
and  is  made,  and  recover  the  contract  price ;  or  he  may  keep  it  at 
the  buyer's  risk,  using  reasonable  diligence  to  preserve  it,  and  re- 
cover the  contract  price  and  expenses  of  preserving  and  keep- 
ing it ;  or  he  may  sell  it,  and  recover  from  the  buyer  the  dif- 
ference between  the  contract  price  and  the  price  at  which  it 
fairly  sold."  The  rule  as  thus  laid  down  was  first  published  in 
1836,  two  years  after  the  decision  in  Hadly's  Case,  above  re- 
ferred to,  which  was  substantially  followed  by  Judge  Swan  in 


CONTRACTS    RELATING   TO   PERbONxiL   PROPERTY.  347 

laying  it  down.  It  does  not  appear  that  either  the  decision  or 
the  rule  as  laid  down  has  ever  been  questioned  in  Ohio.  It  will 
be  perceived  that  Judge  Swan  lays  down  the  rule  generally  as 
applicable  to  all  sales  of  chattels  in  the  ordinary  course  of  trade, 
without  intimating  any  such  distinction  as  that  drawn  in  Gor- 
don V.  Norris.  We  sanction  and  apply  the  rule  in  the  determina- 
tion of  the  particular  case  before  us.  When  the  plaintiff  below 
had  completed  and  tendered  the  carriage  in  strict  performance 
of  the  contract  on  his  part,  if  the  defendant  below  had  accepted 
it,  as  he  agreed  to  do,  there  is  no  question  but  that  he  would  have 
been  liable  to  pay  the  full  contract  price  for  it,  and  he  can  not  be 
permitted  to  place  the  plaintiff  in  a  worse  condition  by  break- 
ing than  by  performing  the  contract  according  to  its  terms  on 
his  part.  When  the  plaintiff  had  completed  and  tendered  the 
carriage  in  full  performance  of  the  contract  on  his  part,  and  the 
defendant  refused  to  accept  it,  he  had  the  right  to  keep  it  at  the 
defendant's  risk,  using  reasonable  diligence  to  preserve  it,  and 
recover  the  contract  price,  with  interest,  as  damages  for  the 
•  breach  of  the  contract  by  the  defendant.  Or,  at  his  election,  he 
could  have  sold  the  carriage  for  what  it  would  have  brought  at 
a  fair  sale,  and  have  recovered  from  the  defendant  the  difference 
between  the  contract  price  and  what  it  sold  for. 

The  court  below  did  not  err  in  refusing  to  give  to  the  jury  the 
special  instructions  requested  by  the  defendant  below. 

Motion  overruled. 

McIlvaine,  C.  J.,  and  Welch,  White,  and  Rex,  J  J.,  con- 
curred. 


TODD  V.  GAMBLE. 

New  York,  1896.     148  K  y.  383. 

Gray,  J.  This  appeal  presents  the  question  of  the  proper 
measure  of  damages  in  an  action  against  the  defendants  for  re- 
fusing to  perform  their  contract  with  the  plaintiffs.  By  that 
contract  the  plaintiffs,  who  were  manufacturers  of  chemicals, 
were  to  furnish  the  defendants  with  "whatever  quantities  of 
silicate  of  soda  they  will  require  to  use  in  their  factories  during 
one  year  from  date"  at  the  price  of  $1.10  per  100  pounds,  in  New 
York.  Under  this  agreement  the  plaintiffs  had  delivered,  and 
the  defendants  had  paid  for,  350  barrels  of  the  article,  when 
the  latter  notified  the  former  that  they  would  not  receive  any 


348  DAMAGES  IN   ACTIONS  ON   CONTRACTS. 

more.  The  refusal  on  the  part  of  the  defendants  to  perform 
their  contract  seems  to  have  been  purely  arbitrary.     *     *     * 

It  was  conceded  that  for  the  balance  of  the  contract  year  the 
defendants  used  about  2,877  barrels  of  silicate  of  soda  (each  bar- 
rel containing  about  550  pounds),  which  they  purchased  from 
other  parties;  and  under  instructions  from  the  court  that  the 
plaintift's,  if  there  was  no  market  value  for  the  article,  were  en- 
titled to  recover  the  difference  between  the  cost  of  production  and 
the  contract  price,-the  jury  rendered  a  verdict  for  the  plaintiffs, 
against  the  defendants  for  their  failure  to  take  that  amount,  for 
damages  measured  by  that  rule.  They  also,  upon  the  request 
of  the  court,  made  a  special  finding  that  at  the  time  of  the  breach 
by  the  defendants  of  their  contract  there  was  no  market  value 
for  silicate  of  soda. 

The  general  rule  for  the  measure  of  damages  in  the  case  of  a 
breach  bj'  a  vendee  in  the  contract  for  the  sale  of  an  article  of 
merchandise  at  a  fixed  price  is  the  difference  between  the  con- 
tract price  and  the  market  value  of  the  article  on  the  day  and  at 
the  place  of  delivery.  (Citing  authorities.)  That  is  the  rule 
which  has  been  recognized  both  in  England  and  here.  The  prin- 
ciple upon  which  it  rests  is  that  of  an  indemnification  of  the  in- 
jured party  for  the  injury  which  he  has  sustained,  and,  in 
ordinary  cases,  the  value  in  the  market  on  the  day  forms  the 
readiest  and  most  direct  method  of  ascertaining  the  measure  of 
this  indenmity.  If  the  article  is  bought  and  sold  in  the 
market,  the  market  price  shows  what  pecuniary  sum  it  would 
take  to  put  the  plaintiff  in  as  good  a  position  as  if  the  contract 
had  been  performed.       *     *     * 

To  justify  a  departure  from  this  general  rule,  the  facts 
must  take  the  case  out  of  the  ordinary,  and,  if  there  is  no  such 
standard  as  a  market  value,  the  measure  of  the  plaintiff's  dam- 
age may  be  arrived  at,  in  a  case  like  the  present  one,  by  ascer- 
taining the  dift'erence  between  the  contract  price  and  the  cost  of 
production  and  delivery.  Market  value,  in  the  ordinary  sense,  is 
generally,  but  not  always,  the  measure  of  damages,  and  the 
application  of  the  rule  necessarily  must  be  to  a  case  where  it 
is  shown  that  there  is  a  market  value  for  the  subject  of  the 
contract  of  sale. 

The  defendants  proceed  upon  the  assumption  that  if  an  article 
is  shown  to  have  a  value,  or  selling  price,  the  measure  of  dam^ 
ages  must  be  the  difference  between  it  and  the  contract  price,  ir« 


CONTRACTS   RELATING   TO    PERSONAL   PROPERTY.  349 

respective  of  the  question  of  the  nature  of  the  market  for  it.  To 
use  their  language :  "If  there  be  no  market,  in  a  restricted 
sense,  yet,  if  the  commodity  is  the  subject  of  sale,  and  there  is 
a  selling  price,  the  same  rule  obtains,  and  proof  of  cost  should 
be  excluded."  Proceeding  upon  that  assumption,  they  argue, 
substantially,  that  as  there  was  sho^vn  to  be  a  selling  price, 
from  the  fact  of  there  having  been  sales  of  the  article  by  the 
plaintiffs,  it  is  a  controlling  factor,  and  compels  the  applica- 
tion of  the  general  rule  for  which  they  contend.  To  that  propo- 
sition I  think  we  should  not  assent,  and  I  fail  to  find  adequate 
support  for  it  either  in  principle  or  in  the  authorities. 

The  general  rule  certainly  can  have  no  application  to  the 
case  of  a  breach  of  a  contract  for  the  manufacture  and  sale  of 
a  commodity,  unless  it  is  made  to  appear  that  upon  the  breach 
by  the  vendee  the  vendor  could  have  placed  the  commodity 
upon  the  market,  and,  by  thus  disposing  of  it,  have  relieved  him- 
self from  the  consequences  of  the  defendants'  default.  The  prin- 
ciple of  indemnity  upon  which  the  rule  rests  would  be  satisfied 
in  such  a  ease,  and  the  vendor  would  be  confined  for  his  recovery 
to  the  difference  between  a  known  market  value  at  the  time  of  the 

breach  of  the  contract  and  the  price  fixed  by  the  contract. 

*     #     # 

"What  must  the  parties  be  deemed  to  have  contemplated  in  the 
present  case  ?  The  defendants  bound  the  plaintiffs,  through  this 
contract,  to  supply  all  the  silicate  of  soda  which  they  would  re- 
quire for  the  year.  The  plaintiffs,  with  ample  capacity  for 
supplying  the  article,  contemplated  that  their  production  would 
be  increased  by  the  amount  which  the  defendants  would  take 
from  them  during  the  year.     *     *     * 

Of  course,  they  must  have  contemplated  a  profit  to  the  plain- 
tiffs if  they  could  manufacture  at  a  cost  under  the  contract  price. 
It  is  absurd  to  say,  in  view  of  the  evidence,  that  there  was  a 
market  value,  in  the  ordinary  sense  of  the  term,  for  silicate  of 
soda,  and,  perhaps,  the  defendants  do  not  seriously  argue  that 
there  was.  But  if  we  are  to  hold,  in  accordance  with  their  views, 
because  there  was  a  price  at  which  the  plaintiffs  had  been  able 
to  effect  sales  of  the  article  at  the  time  of  the  breach,  that  that 
fact  must  be  controlling  in  fixing  the  measure  of  damages,  we 
should  be  doing  a  great  injustice,  and  we  should  be  establish- 
ing a  commercial  rule,  which  would  work  injuriously  in  cases 
where,  like  the  present  one,  the  subject  of  sale  between  the  par- 


350  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

ties  is  au  iirticlo  perishable  in  its  nature,  when  kept  for  any 
leni^th  of  time,  liavinjjc  but  a  limited  demand,  and  no  real  market, 
ami  only  manul'aetuivd  in  any  quantities  upon  orders  by  con- 
sumers. 

I  think  we  should  eonelude  that  there  was  no  error  in  the  in- 
struction given  by  the  trial  judge  to  the  jury  and  this  conclusion 
makes  it  unnecessary  for  us  to  consider  any  of  the  other  ex- 
ceptions in  the  case. 

The  judgment  appealed  from  should  be  affirmed  with  cost. 
All  concur. 

Judgment  affirmed. 


GUETZKOW   BROS.   CO.   v.  ANDREWS. 

Wisconsin,  189G.    92  Wis.  214. 

This  action  was  brought  to  recover  $1,978,  the  price  of  show- 
cases and  of  articles  manufactured  for  the  defendants  by  the 
plaintiffs.  The  goods  were  manufactured  for  a  special  purpose, 
namely,  to  enable  defendant  to  carry  out  a  contract  previously 
made  to  supply  such  goods  to  exhibitors  at  the  World's  Fair. 
The  amounts  that  defendant  was  to  receive  from  such  exhibitors 
were  an  advance  over  plaintiff's  price  of  100  to  150  per  cent. 
The  defendants  sought  to  counterclaim  as  to  damages  which  they 
asserted  they  had  sustained  by  reason  of  the  failure  of  plaintiff 
to  construct  the  article  in  accordance  with  the  contract,  whereby 
defendant  lost  certain  profits.     *     *     * 

]\Iarshall,  j,  *  *  *  There  is  no  controversy  but  that 
the  difference  between  the  contract  price  for  the  goods  to  ap- 
pellant and  what  it  was  to  receive  was  unusually  large.  To  say 
that  such  increased  price  to  the  exhibitors  was  extraordinary,  in 
a  superlative  degree,  would  be  fully  justified.  It  also  appears 
beyond  controversy  that  respondent's  officers  knew,  when  the 
contract  was  made  with  appellants,  that  the  goods  were  in- 
tended for  a  special  purpose.  They  had  reason  to  know  that 
there  was  no  established  market  price  for  such  goods.  They 
knew  that  defendants  were  under  contract  to  furnish  the  goods 
to  the  exhibitors,  but  it  does  not  appear  that  they  had  any 
notice  of  the  contract  price  such  exhibitors  were  to  pay ;  and  it 
is  in  the  light  of  these  facts  that  we  must  determine  the  question 
presented.     [Citing  authorities.]      *     *     * 

Where  there  has  been  a  previous  sale,  or  where  there  has  not, 


CONTRACTS   RELATING   TO   PERSONAL   PROPERTY.  351 

the  fundamental  principle  to  be  observed  is  that  the  damages 
for  the  breach  complained  of  must  be  confined  to  such  as  may  be 
fairly  considered  to  arise,  according  to  the  usual  course  of  things, 
from  such  breach,  or  such  as  may  reasonably  be  supposed  to  have 
been  in  contemplation  of  the  parties  at  the  time  of  making  the 
contract  as  the  probable  result  of  the  breach  of  it.  Hadley  v. 
Baxendale,  9  Exch.  341 ;  Cockburn  v.  Lumber  Co.,  54  Wis.  619. 
Hence,  it  is  held  that,  in  order  to  make  applicable  the  special  rule 
of  damages, — that  is,  loss  of  profits,— it  must  be  sho^\^l  that  the 
special  circumstances,  by  reason  of  which  the  party  invokes 
such  application,  were  brought  clearly  home  to  the  knowledge 
of  both  parties  at  the  time  the  contract  was  made,  and  it  is  only 
applicable  in  so  far  as  such  circumstances  were  so  brought  home. 
[Citing  authorities.]      *     *     * 

But  the  question  arises  whether  the  price  to  the  first  vendee 
must  be  communicated  to  the  second  vendor  in  order  that  he  may 
be  charged  with  the  special  rule  of  damages  at  the  suit  of  his 
vendee,  in  case  of  a  breach  on  the  part  of  such  second  vendor; 
and  upon  the  precise  point  here  presented  the  authorities  are  not 
numerous.  In  Cockburn  v.  Lumber  Co.,  54  Wis.  619,  Mr.  Justice 
Lyon  said:  "To  bind  the  defendant  by  a  price  stipulated  for 
on  a  resale,  he  must  have  had  notice  of  such  resale  when  the  con- 
tract was  made,  though,  perhaps,  not  of  the  contract  price." 
But  it  must  be  observed  that,  in  the  case  then  under  consid- 
eration, the  circumstance  of  extraordinary  profits  was  not 
present ;  that  is,  the  evidence  did  not  disclose  but  that  the  profits 
were  such  as  were  reasonable,  and  might  reasonably  have  been 
in  contemplation  by  both  parties  to  the  transaction  when  the 
contract  was  made. 

The  question  has  been  many  times  considered  in  the  courts  of 
England,  and  may  be  said  to  have  been  long  settled,  that  the  sec- 
ond vendor  is  only  boimd  by  the  terms  of  the  contract  with  the 
second  vendee,  so  far  as  communicated  to  him,  or  he  had  rea- 
sonable ground  to  know  the  same,  by  inference  from  facts 
brought  to  his  knowledge.  All  of  the  cases  refer  to  and  are 
founded  upon  the  general  principle  laid  down  in  Hadley  v. 
Baxendale,  9  Exch.  341.     *     *     * 

Differences  may  be  found  in  the  interpretations  which  courts 
have  put  on  the  rule  of  Hadley  v.  Baxendale;  but  they  gener- 
ally hold  that  the  price  in  the  first  contract  need  not  be  com- 
municated, as  intimated   in   Cockburn  v.  Lumber  Co.,   in  this 


352  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

court.  They  proceed  upon  the  principle,  all  of  them,  that  Imowl- 
edge  of  the  tirst  contract  is  sutficient  to  bring  home  to  the  second 
vendor,  as  an  inference  of  fact,  knowledge  that  the  price  in  the 
first  contract  is  sufficiently  in  advance  of  the  price  in  the  sec- 
ond contract  to  allow  a  reasonable  profit  to  the  second  vendee, 
"We  venture  to  say  that  no  case  can  be  found,  where  the  price 
was  out  of  all  proportion  to  anything  that  might  be  consid- 
ered reasonable  in  order  to  give  a  fair  profit,  that  the  court  has 
held  that  such  unreasonable  profits  may  be  recovered  as  dam- 
ages, where  knowledge  of  such  unreasonable  profits,  as  a  special 
circumstance,  Avas  not  Imown  to  both  parties  at  the  time  of  the 
making  of  the  contract.  The  most  that  is  held  in  Booth  v.  Mill 
Co.,  60  N.  Y.  487,  cited  with  confidence  by  appellants,  is  that 
the  second  vendor  is  bound  by  the  price  his  vendee  is  to  receive, 
unless  it  is  showTi  that  such  price  is  extravagant,  or  of  an  un- 
usual or  exceptional  character.  That  is  as  far  as  the  New  York 
courts  have  gone.  Church,  C.  J.,  said:  ''There  is  considerable 
reason  for  the  position  that,  where  the  vendor  is  distinctly  in- 
formed that  the  purchase  is  made  to  enable  the  vendee  to  fulfill 
a  previous  contract,  and  he  knows  there  is  no  market  price  for 
the  article,  he  assumes  the  risk  of  being  bound  by  the  price 
named  in  such  previous  contract,  whatever  it  may  be."  But  no 
such  rule  was  adopted,  and  no  case  was  there  cited  to  support 
such  a  rule,  and  we  are  unable  to  see  wherein  such  reason  exists. 
It  could  only  be  consistent  with  the  theory  that  the  law  aims  at 
complete  compensation  for  all  losses,  including  gains  prevented 
as  well  as  losses  sustained,  without  the  important  condition,  req- 
uisite to  give  the  rule  the  basic  foundation  upon  which  all  rules 
for  the  assessment  of  damages  are  supposed  to  rest,  that  of  nat- 
ural justice,  which  condition  must  always  be  considered  in  order 
that  the  true  rule  ma^^  be  correctly  stated.  That  is,  that 
the  damages  must  be  such  as  can  be  fairly  supposed  to  have  en- 
tered into  the  contemplation  of  both  parties.     *     *     * 

It  follows  from  the  foregoing  that  there  was  no  evidence  be- 
fore the  referee  by  which  he  could  have  assessed  in  plaintiff's 
favor  damages  for  loss  of  profits  for  the  breach  of  the  contract 
between  it  and  the  defendant,  if  there  was  a  breach.     *     *     * 

It  follows  from  the  foregoing,  that  the  judgment  of  the  su- 
perior court  should  be  affirmed. 

By  the  Court.  The  judgment  of  the  superior  court  is  af- 
^ftrrned. 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  353 

For  rule  of  damages  in  an  action  against  a  common  carrier  for  un- 
lawful discrimination  in  the  sliipping  of  freight,  see  Railway  Co.  v. 
Wren,  17  Ohio,  137. 


3.     Contracts  Relating  to  Work,  Labor  and  Services. 

HAYWARD  V.  LEONARD. 

Massachusetts,  1828.     7  Pick.  181. 

This  was  an  action  of  assumpsit.  It  appeared  that  the  plain- 
tiff erected  a  house  upon  the  defendant's  land  within  the  time 
and  of  the  dimensions  stated  in  the  contract,  but  that  in  work- 
manship and  in  materials  it  was  not  according  to  the  terms  of 
the  agreement.  During  the  progress  of  the  work  the  defendant 
visited  the  place  and  directed  some  variations  from  the  contract. 

Parker,  C.  J.  The  point  in  controversy  seems  to  be  this: 
whether  when  a  party  has  entered  into  a  special  contract  to 
perform  work  for  another,  and  to  furnish  materials,  and  the 
work  is  done  and  the  materials  furnished,  but  not  in  the  manner 
stipulated  for  in  the  contract,  so  that  he  cannot  recover  the 
price  agreed  by  an  action  on  that  contract,  yet  nevertheless  the 
work  and  materials  are  of  some  value  and  benefit  to  the  other 
contracting  party,  he  may  recover  on  a  quantum  meruit  for  the 
work  and  labour  done,  and  on  a  quantum  valebant  for  the  ma- 
terials. We  think  the  weight  of  modern  authority  is  in  favour 
of  the  action,  and  that  upon  the  whole  it  is  conformable  to  jus- 
tice, that  the  party  who  has  the  possession  and  enjoyment  of  the 
materials  and  labour  of  another,  shall  be  held  to  pay  for  them, 
so  as  in  all  events  he  shall  lose  nothing  by  the  breach  of  contract. 
If  the  materials  are  of  a  nature  to  be  removed  and  liberty  is 
granted  to  remove  them,  and  notice  to  that  effect  is  given,  it  may 
be  otherwise.  But  take  the  ease  of  a  house  or  other  building 
fixed  to  the  soil,  not  built  strictly  according  to  contract,  but  still 
valuable  and  capable  of  being  advantageously  used,  or  profit- 
ably rented — there  having  been  no  prohibition  to  proceed  in  the 
work  after  a  deviation  from  the  contract  has  taken  place — no 
absolute  rejection  of  the  building,  with  notice  to  remove  it,  from 
the  ground ;  it  would  be  a  hard  ease  indeed  if  the  builder  could 
recover  nothing. 

And  yet  he  certainly  ought  not  to  gain  by  his  fault  in  violating 

23 


354  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

his  contract,  as  he  may,  if  ho  can  recover  the  actual  value;  for 
he  may  have  contracted  to  build  at  an  under  price,  or  the  value 
of  such  property  may  have  risen  since  the  contract  was  entered 
into.  The  owner  is  entitled  to  the  benefit  of  the  contract,  and 
therefore  he  should  be  held  to  pay  in  damages  only  so  much 
as  will  make  the  price  good,  deducting  the  loss  or  damage 
occasioned  by  the  variation  from  the  contract.  [Here  the  learned 
justice  cites  authorities.] 

It  is  laid  down  as  a  general  proposition  in  Duller 's  Nisi  Prius, 
139,  that  if  a  man  declare  upon  a  special  contract  and  upon  a 
quantum  meruit,  and  prove  the  work  done  but  not  according 
to  the  contract,  he  may  recover  on  the  quantum  meruit,  for  other- 
wise he  would  not  be  able  to  recover  at  all.  Mr.  Dane  (volume 
1,  p.  223)  disputes  this  doctrine,  and  thinks  it  cannot  be  law 
unless  the  imperfect  work  be  accepted.  Buller  makes  no  such 
qualifications.     *     *     * 

Mr.  Dane's  reasoning  is  very  strong  in  the  place  above  cited, 
and  subsequently  in  volume  2,  p.  45,  to  show  that  the  position  of 
Buller,  in  an  unlimited  sense,  cannot  be  law;  and  some  of  the 
cases  he  puts  are  decisive  in  themselves.  As  if  a  man  who  had 
contracted  to  build  a  brick  house,  had  built  a  wooden  one,  or  in- 
stead of  a  house,  the  subject  of  the  contract,  had  built  a  bam. 
In  these  cases,  if  such  should  ever  happen,  the  plaintiff  could 
recover  nothing  without  showing  an  assent  or  acceptance,  ex- 
press or  implied,  by  the  party  with  whom  he  contracted.  Indeed 
such  gross  violations  of  contract  could  not  happen  without  fraud, 
or  such  gross  folly  as  would  be  equal  to  fraud  in  its  consequences. 
When  we  speak  of  the  law  allowing  the  party  to  recover  on  a 
quantum  meruit  or  quantum  valebant,  where  there  is  a  special 
contract,  we  mean  to  confine  ourselves  to  cases  in  which  there  is 
an  honest  intention  to  go  by  the  contract,  and  a  substantive  exe- 
cution of  it,  but  some  comparatively  slight  deviations  as  to  some 
particulars  provided  for.  Cases  of  fraud  or  gross  negligence 
may  be  exceptions. 

In  looking  at  the  evidence  reported  in  this  case,  we  see  strong 
grounds  for  an  inference  that  the  defendant  waived  all  excep- 
tions to  the  manner  in  which  the  work  was  done.  He  seems  to 
have  kno^^^l  of  the  deviations  from  the  contract — directed  some 
of  them  himself — suffered  the  plaintiff  to  go  on  with  his  work — 
made  no  objection  when  it  was  finished,  nor  until  he  was  called 
on  to  pay.     But  the  case  was  not  put  to  the  jury  on  the  ground 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  355 

of  acceptance  or  waiver,  but  merelj^  on  the  question,  whether 
the  house  was  built  pursuant  to  the  contract  or  not ;  and  if  not, 
the  jury  was  directed  to  consider  what  the  house  was  worth  to  the 
defendant,  and  to  give  that  sum  in  damages.  We  think  this 
is  not  the  right  rule  of  damages ;  for  the  house  might  have  been 
worth  the  whole  stipulated  price,  notwithstanding  the  departures 
from  the  contract.  They  should  have  been  instructed  to  deduct 
so  much  from  the  contract  price,  as  the  house  was  worth  less  on 
account  of  these  departures.  And  upon  this  ground  only  a  new 
trial  is  granted. 


VALENTE  V.  WEINBERG. 

Connecticut,  1907.     80  Conn.  134. 

Action  for  services  rendered  and  materials  furnished  under 
building  contracts.  From  a  judgment  for  plaintiff,  defendant 
appeals. 

Thayer,  J.  The  plaintiff  and  defendant  entered  into  two  con- 
tracts for  the  erection  of  a  brick  apartment  house  by  the  former 
upon  the  land  of  the  latter.  The  second  contract  provided 
merely  for  additions  to  and  changes  in  the  earlier  one,  and  we 
may  refer  to  them  as  one  contract.  The  plaintiff  claims  that 
after  he  had  nearly  completed  the  building  the  defendant  unlaw- 
fully ejected  him  from  the  premises  and  prevented  his  comple- 
tion of  the  contract.  He  sues  to  recover  the  value  of  the  labor 
and  materials  which  he  had  furnished  before  he  was  ejected. 
The  defendant  admits  that  he  ejected  the  plaintiff  and  terminat- 
ed his  employment  under  the  contract,  but  claims  to  have  done 
so  pursuant  to  article  5  of  the  contract,  and  by  his  answer  and 
counterclaim  seeks  to  recover  from  the  plaintiff  the  amount 
which  the  defendant  has  paid  to  another  person  to  complete  the 
building.  If  the  plaintiff,  without  fault  on  his  part,  was  pre- 
vented by  the  defendant  from  completing  the  contract,  he  could 
treat  it  as  rescinded,  and  recover,  on  quantum  meruit,  for  the 
work  and  labor  performed  under  it,  or  he  could  bring  his  action 
for  damages  against  the  defendant  for  breaking  the  contract  and 
preventing  the  plaintiff's  performance  of  it.  Derbv  v.  Johnson, 
21  Vt.  18,  21 ;  Wright  V.  Haskell,  45  Me.  492;  United  States  v! 
Behan.  110  IJ.  S.  338,  344,  4  Sup.  Ct.  81,  28  L.  Ed.  168;  Chicago 
V.  Tilley,  103  IT.  S.  146,  154,  26  L.  Ed.  371  ;  Connelly  v.  Devoe, 
37  Conn.  570,  576.     If,  on  the  other  hand,  the  plaintiff  failed 


356  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

to  perform  his  contract,  and  the  defendant  rightfully  entered 
and  completed  it,  acting  under  the  terms  of  the  contract,  the 
plaintiff  cannot  recover.  The  case  turns,  therefore,  upon  the 
question  whether  the  defendant  rightfully  entered  and  ejected 
the  plaintiff.     *     *     * 

AVe  think,  as  already  indicated,  that  such  a  certificate  in  strict 
compliance  with  the  terms  of  article  5  was  essential,  and  that 
the  defendant,  in  proceeding  to  eject  the  plaintiff  and  prevent 
his  performance  of  his  contract  without  such  certificate,  acted 
wrongfully.  The  plaintiff,  therefore,  is  entitled  to  recover  for 
the  services  and  materials  furnished  in  the  construction  of  the 
building. 

The  court  correctly  overruled  the  defendant's  claim  that,  if 
the  plaintiff  was  entitled  to  recover,  "the  measure  of  damages 
is  that  adopted  in  Pinches  v.  Church,  55  Conn.  183,  10  Atl.  264, 
viz. :  the  total  w^hich  the  plaintiff  could  have  recovered,  less  what 
it  cost  to  complete  the  building,"  deducting  any  payments 
which  had  been  received  by  him.  The  case  referred  to  and  the 
present  case  are  wathin  well-recognized,  but  different,  exceptions 
to  the  general  rule  that  no  recovery  can  be  had  for  labor  or 
materials  furnished  under  a  special  contract  unless  the  contract 
has  been  performed.  The  present  case  is  within  the  exception 
which  permits  a  recovery  by  the  contractor  when  the  other  party 
has  incapacitated  himself  to  perform  his  part  of  the  contract,  o.' 
prevented  the  contractor  from  performing  his.  The  failure  to 
perform  being  due  to  the  defendant,  and  without  fault  on  the 
plaintiff's  part,  it  would  be  unjust  that  he  should  suffer  because 
of  the  defendant's  fault  w^hile  the  latter  reaps  the  full  benefit 
of  the  contract.  The  case  of  Pinches  v.  Church  was  within  the 
exception  w^hich  allows  a  recovery  when  the  contractor  has  deviat- 
ed slightly  from  the  terms  of  the  contract,  not  willfully,  but  in 
good  faith,  and  the  other  party  has  availed  himself  of  and  been 
benefited  by  the  labor  and  materials  furnished.  In  such  a  case 
it  is  manifestly  just  that  the  latter  should  be  allowed  for  any 
reasonable  expense  incurred  in  remedying  the  defect,  or  in  mak- 
ing additions  necessary  to  complete  the  work.  In  Pinches  v. 
Church,  it  being  impracticable,  at  a  reasonable  price,  to  com- 
plete the  work  according  to  the  contract,  the  plaintiff  was  allowed 
the  contract  price  less  the  diminution  in  value  of  the  building  by 
reason  of  the  deviations.  The  difference  between  that  case  and 
this  is  clear,  and  the  reason  for  a  different  rule  of  damages  is 


CONTRACTS  RELATING  TO  WORK  AND  SERVICED.  357 

equally  clear.  Had  the  plaintiff  in  the  present  case,  instead  of 
treating  the  contract  as  rescinded,  sought  to  recover  damages 
for  the  defendant 's  breach  of  it,  a  different  rule  of  damages,  but 
not  that  contended  for  by  the  defendant,  would  have  applied. 
United  States  v.  Behan,  supra;  Derby  v.  Johnson,  supra.  But 
the  allegations  of  the  complaint  are  not  adapted  to  such  a  cause 
of  action,  and  it  must  be  treated  as  an  action  to  recover  for 
services  rendered  and  materials  furnished. 

The  defendant  alleges  error  on  the  part  of  the  trial  court  in 
holding  that  he  was  not  entitled  to  recover  the  items  referred  to 
in  paragraph  13  of  the  finding.  But  all  these  items  were  in  effect 
allowed  him  in  the  judgment,  except  the  loan  of  $462,  which  was 
not  recoverable  under  the  pleadings. 

The  remaining  reasons  of  appeal  need  not  be  discussed,  be- 
cause their  soundness  depends  upon  the  validity  of  the  defend- 
ant's claims  (already  considered  and  decided  adversely  to  his 
contention)  that  the  action  is  upon  the  contract,  and  that  the 
architects  were  quasi  judges  between  the  parties,  and  had  given 
a  certificate  which  warranted  the  defendant  in  terminating  the 
plaintiff's  employment. 


WARE  BROS.  CO.  v.  CORTLAND  C.  &  C.  CO. 

New  York,  1908.     192  N.  Y.  439. 

Haight,  J.  On  the  14th  day  of  March,  1903,  the  defendant, 
Cortland  Cart  &  Carriage  Company,  entered  into  a  written  con- 
tract with  the  plaintiff.  Ware  Bros.  Company,  by  which  the  de- 
fendant agreed  to  pay  the  plaintiff  the  sum  of  $350  for  publish- 
ing its  advertisement  once  a  month  for  12  months  in  a  monthly 
publication,  issued  by  the  plaintiff,  known  as  the  "Vehicle 
Dealer."  Thereafter,  and  on  the  2d  day  of  April,  1903,  and 
after  it  is  claimed  the  plaintiff  had  prepared  the  defendant's 
advertisement  for  printing  in  its  Vehicle  Dealer,  the  defendant 
wrote  the  plaintiff  asking  it  to  cancel  the  contract.  This  the 
plaintiff  refused  to  do,  and  thereupon  it  published  the  advertise- 
ment for  the  period  designated  in  the  contract,  and  then,  upon 
the  refusal  of  the  defendant  to  pay  therefor,  brought  this  action 
to  recover  the  amount  of  the  contract  price.  Upon  the  trial  the 
plaintiff  proved  the  contract  and  its  performance  thereunder, 
and  rested.  Then  the  defendant  produced  evidence  to  the 
effect  that  it  had  directed  the  contract  to  be  canceled  and  not 


358  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

perfoniu'cl  by  the  plaintiff,  and  then  rested.  The  court  dis- 
missed the  plaintiff's  complaint  upon  the  ground  that  the  con- 
tract price  was  not  the  measure  oi"  damages  which  the  plaintiff 
was  entitled  to  recover,  and,  inasmuch  as  there  was  no  evidence 
showing  the  amoiuit  of  damages  that  had  been  sustained  by  the 
plaintiff  by  reason  of  the  revocation  of  the  contract  by  the  de- 
fendant, there  could  be  no  recovery. 

It  will  be  observed  that  the  contract  ran  for  one  year,  and  that 
no  payment  was  due  until  the  contract  had  been  fully  performed 
by  the  plaintiff.  It  required  the  printing  of  the  defendant's 
advertisement  in  the  plaintiff' 's  publication  monthly  for  that 
period  of  time,  and  its  circulation  among  the  subscribers  for  the 
plaintiff' 's  A^ehicle  Dealer.  The  contract  in  some  respects  differs 
from  that  of  the  ordinary  employment  of  servants  for  specified 
terms ;  but  we  see  no  reason  why  the  rule  pertaining  to  such  con- 
tracts should  not  apply  and  control  in  the  disposition  of  this 
contract.  Clark  v.  Marsiglia,  1  Denio,  317 ;  Lord  v.  Thomas,  64 
N.  Y.  107-109 :  Railway  Advertising  Co.  v.  Standard  R.  C.  Co., 
83  App.  Div.  191,  affirmed  178  N.  Y.  570.  In  the  case  of  How- 
ard V.  Dal}',  61  N.  Y.  362,  it  was  held  that  where  a  contract  for 
future  employment  had  been  entered  into,  and  afterwards  re- 
voked by  the  employer,  the  remedy  of  the  employe  is  an  action 
to  recover  damages  as  for  a  breach  of  the  contract.  In  such  an 
action  the  damages  are  prima  facie  the  amount  of  the  wages  for 
the  full  term,  and  the  burden  of  proof  is  upon  the  defendant  to 
show  the  mitigation  in  damages.  While  this  rule  may  have  re- 
ceived some  criticism  in  other  jurisdictions,  it  has  steadily  been 
adhered  to  in  the  Supreme  Court,  and  has  recently  been  reassert- 
ed in  this  court  in  the  case  of  Milage  v.  Woodward,  186  N.  Y. 
252-257.  See,  also,  Allen  v.  Glen  Creamery  Co.,  101  App.  Div. 
306,  and  authorities  cited. 

Applying  this  rule  to  the  case  under  consideration,  it  is  ap- 
parent that  the  court  erred  in  its  conclusion  of  law  to  the  effect 
that  there  was  no  evidence  showing  that  there  were  damages 
occasioned  by  the  revocation  of  the  contract  by  the  defendant ; 
for  the  contract  price  would  prima  facie  be  the  measure  of 
damages,  unless  the  defendant  should  show  the  amount  that 
should  be  deducted  therefrom  by  rea.son  of  its  revocation  of  the 
contract.  In  reaching  the  result  above  indicated,  we  wish  it  un- 
derstood that  it  is  not  our  purpose  to  extend  the  rule  beyond 
the  facts  found  in  this  case.     Nor  is  it  our  purpose  to  limit  or 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  359 

impair  the  rule  that,  in  a  breach  of  an  ordinary  contract  for  the 
manufacture  of  an  article  of  the  supplying  of  goods  or  merchan- 
dise, including  that  which  is  known  as  ordinary  job  printing, 
the  damage  is  the  difference  between  the  contract  price  and  the 
cost  of  the  goods,  merchandise,  or  manufactured  article,  in  which 
the  burden  of  showing  the  damages  rests  on  the  plaintiff.  The 
distinguishing  feature  in  this  case,  as  we  regard  it,  is  that  the 
publishing  of  an  advertisement  in  a  periodical  is  the  same  as  the 
publishing  in  a  daily  or  weekly  newspaper,  which  involves  the 
investment  of  no  additional  capital,  or  the  use  of  any  material 
other  than  the  ink  used  and  the  paper  upon  which  it  is  printed, 
and  these  articles  are  of  such  trivial  value  as  not  in  our  judgment 
to  change  the  character  of  the  contract  from  one  for  services  to 
be  rendered. 

The  judgment  should  therefore  be  reversed. 

In  Pittsburgh  Sheet  Co.  v.  AVest  Penii.  Sheet  Steel  Co.  201  Pa.  150. 
defendant  had  contracted  to  deliver  sheet  steel  to  plaintiff,  who  was  a 
manufacturer.  Defendant  broke  this  contract,  and  plaintiff  sought  to 
recover  the  difference  between  the  contract  price  and  the  cost  of  the 
material  and  the  expense  of  manufacture.  This  was  allowed.  But  a 
claim  for  manufacturer's  profits  was  rejected  by  the  court. 

"If  the  buyer  purchases  goods  in  place  of  those  contracted  for  at  less 
than  the  market  value,  and  thus  reduces  the  loss,  he  can  recover  only 
the  actual  loss."    Arnold  v.  Blabon,  147  Pa.  372. 

"A  person  can  only  be  held  to  be  responsible  for  such  consequences  as 
may  be  reasonably  supposed  to  be  in  contemplation  of  the  parties  at  the 
time  of  making  the  contract."  Mr.  Justice  Holmes,  in  Globe  Refining 
Co.  V.  Cotton  Oil  Co.  190  U.  S.  540. 

The  motive  for  the  breach  of  a  contraci  is  commonly  immaterial  in  an 
action  on  the  contract.    lb. 

"The  purchaser,  in  the  event  of  breach  of  warranty,  has  the  election 
of  two  remedies,  viz. :  First,  to  return  the  article  purchased,  recover 
back  the  purchase  i)rice  paid,  and  certain  special  damages ;  or  he  may 
retain  the  machine,  and  recover  or  recoup  against  the  agreed  purchase 
price  such  tlamages  as  its  cieiective  condition  imposes  upon  him  without 
negligence  on  his  part."    Optenburg  v.  Skelton,  109  Wis.  244. 

"When  the  vendor  stands  in  the  position  of  a  complete  performance 
on  his  part,  he  is  entitle<^l  to  recover  the  contract  price  as  his  measure 
of  damages."'     Puritan  Coke  Co.  v.  Clark,  204  Pa.  556. 

In  an  action  on  a  contract  to  manufacture  where  there  has  been  a 
breach,  the  plaintiff  "must  not  by  inattention,  want  of  care,  or  inex- 
cusable negligence,  permit  his  damages  to  grow  and  then  charge  it  all 
to  the  other  party."    Noble  v.  American  Three  Color  Co.  37  Misc.  96. 

In  an  action  against  a  common  carrier  to  recover  the  value  of  an  oil 
painting,  the  portrait  of  plaintiff's  father,  the  just  rule  of  damages  is 
the  actual  value  to  the  owner,  its  cost  and  the  expenses  of  replacing  it. 


360  DAMAGES   IN   ACTIONS   OX    CONTRACTS. 

!=^o  evidence  is  admissible  that  plalntifl"  Imd  no  other  picture  of  liis 
father.    Green  v.  B.  &  I..  K.  II.  12s  Mass.  221. 

^^■here  there  is  no  market  price  in  a  certain  place,  because  there  is 
no  source  of  supply  tliere.  plaint ilT  can  show  the  market  price  at  the 
nearest  available  market  and  add  the  cost  of  transportation.  Grand 
Tower  Co.  v.  Phillips,  23  Wall,  471.  See  also  Long  v.  Pruyn,  128  Mich. 
57,  where  an  inferior  grade  of  fruit  trees  was  delivered. 

Where  the  seller  refuses  to  deliver  and  the  buyer  supplies  himself 
before  the  contract  date  of  delivery  has  arrived,  the  measure  of  dam- 
ages is  the  difference  between  the  price  at  which  the  goods  were  actu- 
ally bought  and  the  contract  price.  Morris  v.  Supplee,  20S  Pa.  253.  See 
also  Kinports  v.  Breon.  193  Pa.  30!);  Doolittle  v,  Murray,  111  N.  W.  Rep. 
999 ;  German  Fruit  Co.  v.  Armsby  Co.  153  Cal.  585,  an  action  for  breach 
of  warranty  on  sale  of  dried  fruit  by  sample. 

In  an  action  to  recover  damages  for  the  non-delivery  of  bonds,  the 
amount  of  damages  sustained  by  plaintiffs  is  properly  l)ased  upon  the 
price  of  bonds  in  the  city  which  has  the  best  available  market.  Zimmer- 
man V.  Tinmierman,  193  N.  Y.  486.  See,  too,  Smith  v.  Green,  L.  R.  1  C. 
P.  D.  92.  a  case  involving  breach  of  warranty  on  sale  of  a  cow. 

If  no  market  price  is  shown  by  plaintiff,  only  nominal  damages  can 
be  awarded.  Brown  v.  Asphalt  Mfg.  Co.  210  Mo.  2G0.  See,  too,  Winslow 
Bros.  V.  Du  Puy,  208  Pa.  98. 

Mr.  Justice  Scott  says  in  American  Theatre  Co.  v.  Siegel  &  Co.,  221  111. 
147 :  "The  law  does  not  permit  a  person  to  receive  goods  under  a  con- 
tract, appropriate  them  to  his  own  use,  and  then  defeat  an  action  for 
the  purchase  price,  on  the  ground  that  the  goods  were  not  of  the  exact 
quality  or  description  called  for  by  the  contract.  His  remedy,  in  the 
absence  of  a  warranty,  is  to  refuse  to  accept  the  goods  when  delivered, 
or  to  return  them  within  a  reasonable  time  after  the  departure  from  the 
terms  of  the  contract  is  discovered.  Wolf  v.  Dietzsch,  75  111.  205; 
Titley  V.  Enterprise  Stone  Co.  127  Id.  547. 


1)     Damages  for  Unlawful  Discharge. 

DENNIS  V.  MAXFIELD. 

Massachusetts,  1865.     10  All.  138. 

Contract  brought  by  the  master  against  the  owners  of  the 
whaling  ship  Harrison,  to  recover  damages  for  a  breach  of  a 
contract  by  which  they  had  employed  him  for  a  whaling  voyage. 
The  contract  was  contained  in  a  shipping  paper,  for  "a  whal- 
ing voyage  of  five  years'  duration  from  the  sailing  of  the  said 
ship  from  the  port  of  New  Bedford,  unless  said  ship  shall  sooner 
return  to  said  port  and  the  voyage  be  terminated;"  and  in  a 
written  agreement  by  which  it  was  provided  as  follows:  "The 
said  Dennis  agreeing  on  his  part  to  perform  a  whaling  voyage  as 
master  of  the  said  ship  Harrison,  to  the  best  of  his  ability  and 


•  CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  361 

knowledge;  and  the  said  Maxfield  as  agent  on  his  part  agrees 
to  pay  for  the  services  of  the  said  Dennis  in  the  manner  follow- 
ing: One  fourteenth  lay  on  net  proceeds  Of  whole  cargo,  and 
one  dollar  per  barrel  on  all  sperm  oil  taken.  In  addition  to  the 
above,  to  have  five  hundred  dollars  if  the  cargo  amounts  to 
$70,000 ;  and  $1000  to  be  added  when  it  shall  amount  to  $90,000 ; 
and  $2000  more  to  be  added  to  the  aforesaid  amount  when  the 
cargo  amounts  to  $100,000.  Also  to  have  one  hundred  dollars 
for  each  and  every  thousand  dollars  that  the  cargo  may  exceed 
one  hundred  thousand  dollars." 

The  declaration  averred  that  the  plaintiff  sailed  from  New 
Bedford,  in  pursuance  of  the  above  contract,  on  the  17th  of 
May,  1858,  and  well  and  truly  performed  his  duty  until  the 
20th  of  November,  1860,  when  the  defendants  wrongfully  de- 
posed and  removed  him  at  the  Sandwich  Islands. 

At  the  trial  in  this  court  the  plaintiff  claimed  damages  occa- 
sioned by  his  removal  and  for  preventing  him  from  receiving 
his  share  of  the  future  earnings  of  the  ship. 

BiGELOW,  C.  J.  Of  the  several  rulings  made  at  the  trial  of 
this  ease,  three  only  seem  to  be  open  for  revision  on  the  excep- 
tions. 

1.  The  first  relates  to  the  right  of  the  plaintiff  to  recover  in 
this  action  the  amount  of  his  share  of  the  earnings  which  had 
accrued  under  his  contract  with  the  defendants  prior  to  his 
removal  by  them  from  the  command  of  the  vessel.  The  action 
is  brought  for  a  breach  of  an  entire  contract  for  services.  The 
plaintiff  has  a  right  to  recover  as  damages  the  amount  which 
is  lawfully  due  to  him  under  the  stipulations  by  which  his  com- 
pensation for  these  services  was  to  be  regulated  and  governed. 
This  includes  the  wages  which  he  had  earned  previous  to  his 
removal,  as  well  as  those  which  he  was  prevented  from  earning 
by  his  wrongful  discharge.  The  breach  of  the  contract  by  the 
defendants  has  created  only  one  cause  of  action  in  favor  of  the 
plaintiff.  His  compensation  for  this  breach  necessarily  em- 
braces all  that  he  is  entitled  to  recover  under  the  contract.  In- 
deed his  right  to  recover  anything,  as  well  that  which  was  earned 
before  as  that  which  would  have  been  earned  if  he  had  not  been 
discharged,  depends  on  the  question  whether  he  has  performed 
his  part  of  the  contract.  A  party  cannot  sever  a  claim  for 
damages  arising  under  one  contract  so  as  to  make  two  distinct 
and  substantive  causes  of  action.     We  are  therefore  all  of  opin- 


362  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

ion  that  the  sum  tine  to  the  phiintilT  prior  to  his  discharge,  when 
it  shall  have  been  ascertained  by  an  assessor,  ought  to  be  added 
to  the  amount  of  the  verdict. 

2.  ^Ve  think  it  etiually  clear  that  the  plaintiff  is  entitled  to 
recover  in  this  action  his  share  or  proportion  of  the  future 
profits  or  eai-nings  of  the  vessel  after  his  discharge  by  the  de- 
fendants. These  constitute  a  valid  claim  for  damages,  because 
the  parties  have  expressly  stipulated  that  profits  should  be  the 
basis  on  which  a  portion  of  the  plaintiff's  compensation  for  ser- 
vices should  be  reckoned.  These  earnings  or  profits  were  there- 
fore within  the  direct  contemplation  of  the  parties,  when  the 
contract  was  entered  into.  They  are  undoubtedly  in  their 
nature  contingent  and  speculative  and  difficult  of  estimation; 
but,  being  made  by  express  agreement  of  the  parties  of  the  es- 
sence of  the  contract,  we  do  not  see  how  they  can  be  excluded 
in  ascertaining  the  compensation  to  which  the  plaintiff  is  en- 
titled. Would  it  be  a  good  bar  to  a  claim  for  damages  for 
breach  of  articles  of  copartnership,  that  the  profits  of  the  con- 
templated business  were  uncertain,  contingent,  and  difficult  of 
proof,  and  could  it  be  held  for  this  reason  that  no  recovery  could 
be  had  in  case  of  a  breach  of  such  a  contract  ?  Or  in  an  action 
on  a  policy  of  insurance  on  profits,  would  it  be  a  valid  defence 
in  the  event  of  loss  to  say  that  no  damages  could  be  claimed  or 
proved  because  the  subject  of  insurance  was  merely  speculative, 
and  the  data  on  which  the  profits  must  be  calculated  were  neces- 
sarily inadequate  and  insufficient  to  constitute  a  safe  basis  on 
which  to  rest  a  claim  for  indemnity?  The  answer  is,  that  in 
such  cases  the  parties,  having  by  their  contract  adopted  a  con- 
tingent, uncertain,  and  speculative  measure  of  damages,  must 
abide  by  it,  and  courts  and  juries  must  approximate  as  nearly  as 
possible  to  the  truth  in  endeavoring  to  ascertain  the  amount 
which  a  party  may  be  entitled  to  recover  on  such  a  contract  in 
the  event  of  a  breach.  If  this  is  not  the  rule  of  law,  we  do  not 
see  that  there  is  any  alternative  short  of  declaring  that  where 
parties  negotiate  for  compensation  or  indemnity  in  the  form  of 
an  agreement  for  profits  or  a  share  of  them,  no  recovery  can  be 
had  on  such  a  contract  in  a  court  of  law,— a  proposition  which 
is  manifestly  absurd. 

There  are  doubtless  many  eases  where  no  claim  for  a  loss  of 
profits  can  properly  constitute  an  element  of  damage  in  an 
action  for  breach  of  a  contract.     These,  however,  are  cases  in 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  363 

which  there  was  no  stipulation  for  compensation  by  a  share  of 
the  profits,  and  where  they  were  not  within  the  contemplation 
of  the  parties,  and  did  not  form  a  natural,  necessary,  or  prox- 
imate result  of  a  breach  of  the  contract  declared  on  Fox  v.  Hard- 
ing, 7  Cush.  516.  But  these  cases  are  no  authority  for  the 
broad  proposition  that  in  no  case  whatever  can  profits  be  in- 
eluded  in  estimating  damages  for  a  breach  of  a  contract.  In 
Jolmson  V.  Arnold,  2  Cush.  46,  cited  by  the  defendants '  counsel, 
the  court  decided  only  that,  in  an  action  for  breach  of  contract 
for  services,  by  which  it  was  agreed  that  a  party  should  be  com- 
pensated by  a  share  of  the  profits,  the  damages  were  not  to  be 
limited  exclusively  to  the  loss  of  profits,  but  might  include  other 
elements,  if  satisfactorily  proved.  In  Brown  v.  Smith,  12  Cush. 
366,  the  action  was  against  the  master  of  a  whaling-vessel  for 
misconduct  and  mismanagement,  by  which  the  voyage  was 
broken  up.  It  was  held  that  no  conjectural  or  possible  profits 
of  the  voyage  could  be  taken  into  consideration  in  estimating  the 
damages.  This  decision  stands  on  the  ground  that  there  were 
so  stipulations  in  the  contract  concerning  profits,  nor  were  they, 
so  far  as  appeared,  in  contemplation  of  the  parties  when  the 
contract  was  made,  nor  a  necessary  or  proximate  consequence 
of  its  breach.  Besides,  it  was  only  a  claim  for  conjectural  or 
possible  profits  which  was  rejected  by  the  court  in  that  case,  and 
not  profits  which  were  capable  of  being  proved  by  competent 
evidence,  as  in  the  case  at  bar. 

3.  The  remaining  ground  of  exception  is  to  the  instruction 
given  to  the  jury  that,  if  the  defendants  had  been  injured  by 
any  negligence  of  the  plaintiff  in  the  conduct  of  the  voyage, 
not  sufficient  to  justify  his  removal  and  prevent  him  from 
maintaining  his  action,  then  damages  might  be  recouped  or  de- 
ducted from  the  damages,  if  any,  which  they  should  find  that  the 
plaintiff  has  sustained  by  his  removal.  We  doubt  very  much 
the  correctness  of  this  instruction.  It  seems  to  involve  the 
proposition  that  the  plaintiff  could  recover  damages  for  a  breach 
of  the  contract,  although  he  had  previously  been  guilty  of  violat- 
ing his  part  of  the  agreement.  But  the  instruction  was  given  at 
the  express  request  of  the  defendants'  counsel.  It  was  the  rule 
of  law  by  which  he  wished  the  rights  of  his  clients  to  be  tried 
and  determined.     *     *     * 

Exceptions  overruled. 


364  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

WOLF  V.  STUDEBAKER. 
Pennsylvania,  1870.     65  Pa.  459. 

Tno^rPSON,  C.  J.  We  have  no  question  before  us  involving 
the  fact  of  an  agreement  between  the  plaintiff  and  defendant, 
by  which  the  latter  agreed  to  let  to  the  former,  on  the  shares, 
her  farm  for  one  year,  from  the  1st  of  April,  1867.  The  verdict 
has  settled  that  fact  in  favor  of  the  plaintiff.  The  only  question 
before  us,  therefore,  is  that  relating  to  damages  for  the  breach 
of  the  contract  to  give  possession  by  the  defendant. 

The  plaintiff  claimed  to  recover  the  value  of  his  contract,  that 
is  to  say,  what  he  might  reasonably  have  made  out  of  it,  for  his 
damages.  In  Hoy  v.  Gronoble,  10  Casey,  10,  which,  like  the  case 
in  hand,  was  to  recover  damages  for  a  failure,  on  part  of  the 
defendant,  to  deliver  possession  of  the  farm  which  he  had  agreed 
to  let  to  the  plaintiff  to  farm  on  the  shares,  the  rule  as  to  damages 
is  thus  stated  in  the  opinion  of  the  court  by  Strong,  J. :  "We  can- 
not say,  therefore,  that  the  jury  were  misled  in  this  case  by  being 
told  that  the  damages  of  the  plaintiff  should  be  measured  by 
what  he  could  have  made  on  the  farm.  This  was  but  another 
mode  of  saying  that  he  was  entitled  to  the  value  of  his  bargain. ' ' 
This,  as  a  rule,  does  not  seem  to  have  been  controverted  by  the 
defendant.  But  she  was  permitted  to  prove,  under  objection,  in 
mitigation  of  damages,  by  one  Abraham  May,  as  follows:— 

"Wolf  was  engaged  in  hauling  for  the  bridge  in  the  summer 
of  1867 ;  he  commenced  hauling  in  June,  and  continued  up  to  the 
cold  weather ;  before  this  he  was  working  lots  around ;  after  this 
he  marketed  some.  Wolf  and  I  looked  over  his  books  at  one 
time,  and  his  earnings  amounted  to  about  $1000 ;  he  hauled  after 
this;  he  hauled  hay  to  his  own  stable,  and  some  to  Bowman's 
in  the  latter  part  of  March ;  his  property  consists  of  a  house  and 
stable,  and  about  a  quarter  of  an  acre  of  land ;  I  was  at  Wolf 's 
sale,"&c. 

The  earnings  of  this  man  in  this  way,  it  was  thought  by  the 
learned  judge,  should  to  the  extent  of  them  mitigate  the  damages 
arising  from  the  defendant's  broken  contract;  in  other  words, 
the  logic  seemed  to  be  that  because  he  was  an  industrious  man, 
he  was  not  within  the  same  rule  of  compensation  that  one  not 
so  would  be.  There  are  imdoubtedly  cases  in  which  such  facts 
do  mitigate  damages.  Such  commonly  occur  in  cases  of  the 
employment  of  clerks,  agents,  laborers,  or  domestic  servants,  for 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  365 

a  year  or  a  shorter  determinate  period.  But  I  liave  found  no 
case  where  a  disappointed  party  to  a  contract  for  a  specific  thing 
or  work,  who,  taking  the  risk  from  necessity,  of  a  different  busi- 
ness from  that  which  his  contract  if  complied  with  would  have 
furnished,  and  shifting  for  himself  and  family  for  employment 
for  them  and  his  teams,  is  to  be  regarded  as  doing  it  for  the 
benefit  of  a  faithless  contractor.  It  seems  to  me,  therefore,  that 
the  rule  upon  which  the  testimony  quoted  was  admitted  was 
wrested  from  its  legitimate  purpose,  and  applied  to  an  illegiti- 
mate one.  In  2  Greenlf.  Ev.  §  261  a,  the  distinction  is  marked 
between  "contracts  for  specific  work  and  contracts  for  the  hire 
of  clerks,  agents,  laborers,  and  domestic  servants  for  a  year  or 
shorter  determinate  periods."  In  that  case  the  learned  author 
shows  that  the  defendant  may  prove,  on  a  breach  of  the  contract, 
"either  that  the  plaintiff  was  actually  engaged  in  other  profit- 
able service  during  the  term,  or  that  such  employment  was 
offered  to  him,  and  he  rejected  it." 

There  is  an  evident  distinction  between  such  a  hiring  and  a 
contract  for  the  performance  of  some  specific  undertaking.  In 
the  one  case,  the  party  can  earn  and  expect  to  earn  no  more 
than  single  wages,  and  if  he  gets  that,  his  loss  will  generally  be 
but  nominal.  King  v.  Steiren,  8  Wright,  99,  w^as  of  this  nature. 
Whereas,  in  the  other  case  the  loss  of  the  party  is  the  loss  of  the 
benefits  of  the  contract  he  is  prepared  to  perform.  In  Costigan 
v.  The  Railroad  Company,  2  Denio,  609,  in  a  case  of  hiring  for 
personal  service,  where  the  party  was  dismissed  before  his  term 
had  expired,  it  was  held  he  was  not  obliged  to  seek  employment, 
nor  perform  services  offered  him  of  a  different  nature  from  that 
he  had  engaged  to  perform,  in  order  to  recover  full  damages  for 
disappointment.  In  analogy  to  this  principle,  I  would  say,  that 
where  a  disappointed  contractor  for  the  performance  of  a  speci- 
fied thing  finds  something  of  a  different  nature  from  his  contract 
to  do,  his  doing  it  ought  not  to  mitigate  the  damages  for  the 
breach  of  his  contract  by  the  other  party.  Indeed,  there  is  enough 
in  the  difficulty  of  applying  such  a  rule  to  discard  it.  It  would 
necessarily  involve  proof  of  everything,  great  and  small,  no  mat- 
ter how  various  the  items  done  by  the  plaintiff  during  the  period 
of  the  contract  might  be,  and  how  much  he  made  in  the  mean- 
time. It  happened  in  this  case,  that  a  witness  saw  the  plaintiff's 
book,  and  testifies  from  it  that  he  had  earned  $1000.  The  expense 
incurn'd  in  earning  it,  he  did  not  see,  or,  if  he  did,  did  not  dis- 


366  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

close.  But  this  single  ease  ought  not  to  furnish  a  rule  in  other 
cases.  It  cannot  be  that  results  utterly  unconnected  with  the 
cause  of  action  and  the  party  sued  can  be  made  to  tell  to  his 
advantage.     *     *     * 

We  think  that  that  which  should  mitigate  damages  in  a  con- 
tract like  that  \we  are  considering  should  be  something  resulting 
from  the  acts  of  the  party  occasioning  the  injury,  or  from  the 
contract  itself.  The  damages  may  be  said  to  be  fixed  by  the  law 
of  the  contract  the  moment  it  is  broken,  and  I  cannot  see  how  that 
is  to  be  altered  by  collateral  circumstances,  independent  of,  and 
totally  disconnected  from  it,  and  from  the  party  occasioning  it. 

Judgment  reversed. 


HOWARD  V.  DALY. 

New  York,   1875.     61   N.  Y.   362. 

The  action  was  brought  upon  an  alleged  contract  for  employ- 
ment and  service. 

The  complaint  set  forth  in  substance  that  the  plaintiff  agreed 
to  act  at  the  Fifth  Avenue  Theater  in  New  York  for  the  de- 
fendant from  September  15,  1870,  to  July  1,  1871,  at  a  salary 
of  $10  per  week  during  the  season.  She  alleged  that,  though 
ready  and  willing  to  perform,  she  was  not  assigned  any  part, 
and  that  she  had  been  paid  nothing.  From  a  judgment  for  $410, 
defendant  appealed. 

D WIGHT,  c.  *  *  *  The  next  point  is,  whether  the  plain- 
tiff was  bound,  notwithstanding  the  defendant 's  act,  to  keep  her- 
self in  readiness  to  perform  the  contract  at  all  times,  or  in  any 
form  to  tender  her  services.  This  inquiry  involves  the  correct 
theory  of  the  nature  of  the  action.  Does  the  plaintiff  sue  "for 
wages  on  the  hypothesis  of  a  constructive  service,  or  for  damages  ? 
This  question,  as  far  as  appears,  has  never  been  fully  discussed 
in  the  appellate  courts  of  this  state;  and,  on  account  of  both 
its  novelty  and  importance,  will  be  considered  at  length. 

It  is  very  plain,  that  if  a  servant  has  actually  performed  the 
service  which  he  has  agreed  to  render  under  the  contract,  he  has 
a  right  to  recover  wages.  That  would  have  been  true  in  the 
case  at  bar  if  the  defendant  had  received  her  services  for  the 
stipulated  period.  Had  he  not  paid  her  according  to  the  agree- 
ment, her  action  would  have  been  for  the  fixed  wages.  If,  on 
the  other  hand,  she  is  wrongfully  discharged,  and  the  relation 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  367 

of  master  and  servant  is  broken  off  as  far  as  he  is  concerned,  it 
is  clear  that  she  cannot  recover  for  wages  in  the  same  sense  as  if 
she  had  actually  rendered  the  service.  In  an  early  nisi  prius 
case  the  fiction  of  a  "constructive"  service  was  resorted  to,  and 
a  servant  discharged  without  cause  was  allowed  to  recover 
wages.  Gandell  v.  Pontigny,  4  Campb.  375.  See,  also,  Collins 
V.  Price,  4  Bing.  132.  This  view  has  been  discarded  in  later  de- 
cisions and  has  been  disapproved  by  text- writers.  [Here  the 
learned  commissioner  cites  authorities.] 

These  cases  and  authorities  hold,  in  substance,  that  if  a  servant 
be  wrongfully  discharged,  he  has  no  action  for  wages,  except  for 
past  services  rendered,  and  for  sums  of  money  that  have  become 
due.  As  far  as  any  other  claim  on  the  contract  is  concerned,  he 
must  sue  for  the  injury  he  has  sustained  by  his  discharge,  in  not 
being  allowed  to  serve  and  earn  the  wages  agreed  upon.  Smith 
on  Master  and  Servant,  96,  note  "n";  Elderton  v.  Emmons,  6 
Com.  Bench,  187 ;  Beckham  v.  Drake,  2  Ho.  Lords  Cases,  606. 
A  servant  wrongfully  discharged  has  but  two  remedies  growing 
out  of  the  wrongful  act:  (1)  He  may  treat  the  contract  of  hiring 
as  continuing,  though  broken  by  the  master,  and  may  recover 
damages  for  the  breach.  (2)  He  may  rescind  the  contract;  in 
which  case  he  could  sue  on  a  quantum  meruit,  for  services  act- 
ually rendered.  These  remedies  are  independent  of  and  addi- 
tional to  his  right  to  sue  for  wages,  for  sums  actually  earned  and 
due  by  the  terms  of  the  contract.  This  last  amount  he  recovers 
because  he  has  completed,  either  in  full  or  in  a  specified  part, 
the  stipulations  between  the  parties.  The  first  two  remedies 
pointed  out  are  appropriate  to  a  wrongful  discharge. 

To  apply  these  principles  to  the  case  at  bar,  the  plaintiff  must 
have  been  ready  and  willing  to  continue  in  the  defendant's  ser- 
vice at  the  time  of  the  latter 's  refusal  to  receive  her  into  his 
employment.  2  "VVm.  Saund.  352  et  seq.,  note  to  Peeters  v.  Opie. 
It  is  not  necessary,  however,  that  she  should  go  through  the  barren 
form  of  offering  to  render  the  service.  AVallis  v.  Warren,  4 
Exch.  361;  hevy  v.  Lord  Herbert,  7  Taunt.  314;  Carpenter  v. 
Holcomb,  105  ]\Iass.  284,  and  cases  cited  in  opinion  by  Colt,  J. 
Her  readiness,  like  any  other  fact,  may  be  shown  by  all  the  cir- 
cumstances of  the  case.  It  sufficiently  appeared  by  the  conduct 
of  the  parties. 

After  the  defendant  had  declined  to  give  her  employment, 
there  was  no  further  duty  on  the  plaintiff's  part  to  be  in  readi- 


368  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

uess  to  perform.  If  that  readiness  existed  when  tlic  time  to  enter 
into  service  commenced,  and  the  defendant  eonnnitted  a  default 
on  his  part,  the  contract  was  broken  and  she  had  a  complete  cause 
of  action.  Tender  of  performance  is  not  necessary  when  there 
is  a  willingness  and  ability  to  perform,  and  actual  performance 
has  been  prevented  or  expressly  waived  by  the  parties  to  whom 
performance  is  due.  Franchot  v.  Leach,  5  Cow.  506;  Cort  v. 
Ambergate  &  R.  R.  Co.,  17  A.  &  E.  (N.  S.)  127.  This  rule  is 
recognized  in  Nelson  v.  Plimpton  Fireproof  E.  Co.,  55  N.  Y.  480, 
484.  Iler  future  conduct  could  not  affect  her  right  to  sue,  though 
it  might  bear  on  the  question  of  damages.  She  was  not  obliged  to 
remain  in  New  York  or  in  any  form  to  tender  her  services  after 
they  had  been  once  definitely  rejected. 

If  this  theory  of  the  plaintiff 's  case  is  correct,  her  only  further 
duty  was  to  use  reasonable  care  in  entering  into  other  employ- 
ment of  the  same  kind,  and  thus  reduce  the  damages.  This  ob- 
ligation is  of  a  general  nature,  and  not  peculiarly  applicable  to 
contracts  of  service.  The  cases  on  this  point  are:  Emmons 
V.  Elderton,  4  H.  L.  Cas.  646 ;  Costigan  v.  Mohawk  &  H.  R.  R. 
Co.,  2  Denio,  609;  Dillon  v.  Anderson,  43  N.  Y.  231;  Hamilton 
v.  McPherson,  28  N.  Y.  76.  The  imcontradicted  testimony  was, 
that  this  duty  was  discharged  by  the  plaintiff.  She  made  effort 
to  procure  employment,  but  failed.  While  it  would  be  unques- 
tionably her  duty  to  accept,  if  offered,  another  eligible  theatrical 
engagement,  it  could  scarcely  be  expected  that  she  should  spend 
much  time  in  actively  seeking  for  employment.  Having  made 
some  effort  and  having  failed,  I  think  that  she  was  justified, 
under  the  known  usage  in  that  business  of  forming  companies  of 
actors  at  certain  seasons  of  the  year,  and  the  slight  prospect  of 
success  in  making  an  engagement  after  the  fifteenth  of  Septem- 
ber, in  awaiting  the  close  of  the  theatrical  season.  How  far  a  per- 
son who  is  wrongfully  discharged  from  employment  is  bound  to 
seek  it  is  not,  perhaps,  fully  settled.  Chamberlin  v.  Morgan,  68 
Pa.  168 ;  King  v.  Steiren,  44  Pa.  99.  In  the  first  of  these  cases  it 
is  said  that  it  is  the  duty  of  a  dismissed  servant  not  to  remain 
idle,  and  that  the  defendant  may  show,  in  mitigation  of  damages, 
that  the  plaintiff  might  have  procured  employment.  This  seems 
to  be  a  reasonable  rule.  Prima  facie,  the  plaintiff  is  damaged  to 
the  extent  of  the  amount  stipulated  to  be  paid.  The  burden 
of  proof  is  on  the  defendant  to  show  either  that  the  plaintiff 
has  found  employment  elsewhere,  or  that  other  similar  employ- 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  369 

ment  has  been  offered  and  declined,  or,  at  least,  that  such  em- 
ployment might  have  been  found.  I  do  not  think  that  the  plain- 
tiff is  bound  to  show  affirmatively,  as  a  part  of  her  ease,  that  such 
employment  was  sought  for  and  could  not  be  found.  2  Greenl. 
on  Ev.  §  261,  a ;  Costigan  v.  M.  &  H.  R.  R.  Co.,  2  Denio,  609. 

No  such  evidence  having  been  offered  by  the  defendant,  the 
plaintiff  should  recover  the  whole  amount  of  her  stipulated  com- 
pensation as  the  damages  attributable  to  the  defendant's  breach 
of  contract.  This,  as  has  been  seen,  is  the  true  measure  of 
damages.     [Citing  authorities.] 

x\s  far  as  any  authorities  are  opposed  to  the  theory  maintained 
in  the  present  case,  they  W'ill  appear  to  rest  on  the  nisi  prius  case 
of  Gandell  v.  Pontigny,  already  noticed.  Thus  in  Thompson  v. 
Wood,  1  Hilt.  96,  there  is  a  dictum  of  Ingraham,  J.,  that  a  serv- 
ant wrongfully  discharged  has  his  election  to  sue  for  wages  as 
they  become  due  from  time  to  time,  or  for  damages.  This  remark 
that  he  could  sue  for  wages  evidently  proceeds  on  the  discarded 
doctrine  of  "constructive  service."  In  Himtington  v.  Ogdens- 
burgh,  etc.,  R.  R.  Co.,  33  How.  Prac.  416,  there  are  some  remarks 
of  a  similar  nature  by  Potter,  J.,  though  there  is  an  apparent 
confusion  between  a  claim  for  wages,  in  case  the  contract  is  car- 
ried out,  and  for  damages,  in  case  it  is  broken  off.  The  opinion 
of  James,  J.,  as  reported  in  this  case  in  7  American  Law  Register 
(X.  S.)  143,  appears  to  be  distinct  in  its  adoption  of  the  doctrine 
of  constructive  service.  It  relies  on  a  case  in  Alabama  (Fowler 
V.  Armour,  24  Ala.  194),  which  distinctly  holds  that  doctrine, 
and  on  the  dictum  of  Ingraham,  J.,  in  Thompson  v.  Wood,  supra. 
There  are  two  or  three  other  cases  in  the  Southern  and  Western 
states  that  have  followed  Gandell  v.  Pontigny :  Armfield  v.  Nash, 
31  Miss.  361;  Gordon  v.  Brewster,  7  Wis.  355;  Booge  v.  Pacific 
R.  R.  Co.,  33  Mo.  212. 

This  doctrine  is,  however,  so  opposed  to  principle,  so  clearly 
hostile  to  the  great  mass  of  the  authorities,  and  so  wholly  irrecon- 
cilable to  that  great  and  beneficent  rule  of  law,  that  a  person  dis- 
charged from  service  must  not  remain  idle,  but  must  accept  em- 
ployment elsewhere  if  offered,  that  we  cannot  accept  it.  If  a 
person  discharged  from  service  may  recover  wages,  or  treat  the 
contract  as  still  subsisting,  then  he  must  remain  idle  in  order  to 
be  always  ready  to  perform  the  service.  How  absurd  it  would 
be  that  one  rule  of  law  should  call  upon  him  to  accept  other  em- 
ployment, while  another  rule  required  him  to  remain  idle  in 

24 


370  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

order  that  he  may  recover  full  wages.  The  doctrine  of  "con- 
structive service"  is  not  only  at  war  with  princ-iiilc,  l)ut  with  the 
rules  of  political  economy  as  it  encourages  idleness  and  gives 
compensation  to  men  who  fold  their  ui'iiis  ;ind  decline  service, 
equal  to  those  who  perform  with  willing  hands  their  stipulated 
amoimt  of  labor.  Though  the  mastei-  has  conunitted  a  wrong, 
the  servant  is  not  for  one  moment  released  from  the  rule  that  he 
shoidd  labor;  and  no  rule  can  be  sound  which  gives  him  full 
wages  while  living  in  voluntary  idleness.  For  these  reasons,  if 
the  plaintiff  was  discharged  after  the  time  of  service  commenced, 
she  had  an  immediate  cause  of  action  for  damages,  which  were 
prima  facie  a  sum  equal  to  the  stipulated  amount,  unless  the 
defendant  should  give  evidence  in  mitigation  of  damages. 

Tile  next  inquiry  is  as  to  the  rule  to  be  followed  in  case  the 
defendant 's  denial  of  the  contract  preceded  the  time  for  entering 
into  the  service.  It  is  now  a  well  settled  rule  that  if  a  person 
enters  into  a  contract  for  service,  to  commence  at  a  future  day, 
and  before  that  day  arrives  does  an  act  inconsistent  with  the  con- 
tinuance of  the  contract,  an  action  may  be  immediately  brought 
by  the  other  party ;  and  of  course,  without  averring  performance, 
or  readiness  to  perform.  The  leading  cases  on  that  subject  are 
Hochster  v.  De  La  Tour,  2  Ellis  &  Black,  678 ;  Frost  v.  Knight, 
Law  Rep.  7  Exch.  Ill,  reversing  s.  c.  in  L.  R.  5  Exch.  322 ;  Roper 
V.  Johnson,  Law  Rep.  8  Com.  Pleas,  167 ;  Burtis  v.  Thompson, 
42  N.  Y.  246 ;  Crist  v.  Armour,  34  Barb.  378. 

In  Hochster  v.  De  La  Tour  the  facts  were,  that  the  plaintiff 
had  agreed  to  enter  the  service  of  the  defendant  as  a  courier,  on 
June  1, 1852,  and  to  serve  in  that  capacity  for  three  months,  from 
the  1st  of  June,  at  a  specified  monthly  salary.  Before  that  day 
arrived,  the  defendant  wholly  refused  to  employ  the  plaintiff  in 
the  capacity  aforesaid,  and  wholly  discharged  him  from  the 
agreement.  The  action  was  commenced  on  June  22,  1852.  The 
court  held  that  the  action  was  well  brought,  on  the  ground  that 
it  was  an  act  done  inconsistent  with  the  relation  of  master  and 
servant,  and,  accordingly,  not  so  much  a  breach  of  the  express 
agreement,  as  of  an  imi)lied  contract,  in  no  way  to  do  any  thing 
to  the  prejudice  of  the  opposite  party,  inconsistent  with  that 
relation. 

Another  form  of  statement  is,  that  the  party  renouncing  his 
engagement  cannot  complain  if  the  opposite  party  takes  him  at 
his  word,  and  treats  him  as  having  broken  the  contract.     This 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  371 

doctrine  results  in  the  rule,  that  the  opposite  party  has  an  option 
either  to  treat  the  contract  as  subsisting,  and  when  the  day  ar- 
rives for  commencing  to  serve  to  offer  to  perform,  or  to  regard  it 
as  immediately  broken,  and  to  sue  before  the  day  arrives.  This 
theory  of  an  option  is  not  objectionable,  since,  before  the  day 
for  performance  arrives,  a  party  would  not  be  bound  to  accept 
other  employment,  if  offered,  as  he  would  be  if  the  contract 
were  broken  oif  after  that  time.  The  principle  that  governs  the 
one  case  is  plainly  not  applicable  to  the  other. 

This  case,  at  first,  met  with  doubt,  and  even  adverse  criticism. 
It  was  powerfully  assailed  by  Chief  Baron  Kelly,  of  the  Court 
of  Exchequer,  in  Frost  v.  Knight,  L.  R.  5  Exch.  322.  His  argu- 
ments were  carefully  considered  on  an  appeal  of  that  case  to  the 
Court  of  Exchequer  Chamber,  where  the  doctrine  of  Hochster  v. 
De  La  Tour  was  fully  confirmed,  and  it  is  now  accepted  law.  S. 
c,  L.  R.  7  Exch.  111.  Other  cases  to  the  same  effect  are  Danube 
&  Black  Sea  Co.  v.  Xenos,  13  C.  B.  (N.  S.)  825,  and  Wilkinson 
v.  Verity,  L.  R.  6  C.  P.  206.  The  result  of  the  cases  is  stated  by 
Coekbum,  C.  J.,  in  Frost  v.  Knight,  in  the  Exchequer  Chamber, 
in  the  following  terms :  ' '  The  law  with  reference  to  a  contract 
to  be  performed  at  a  future  time,  where  the  party  bound  to  the 
performance  announces,  prior  to  the  time,  his  intention  not  to 
perform  it,  as  established  by  the  cases  [citing  them] ,  may  be  thus 
stated :  The  promisee,  if  he  pleases,  may  treat  the  notice  of  inten- 
tion as  inoperative,  and  await  the  time  when  the  contract  is  to 
be  executed,  and  then  hold  the  other  party  responsible  for  all  the 
consequences  of  non-performance ;  but  in  that  case  he  keeps  the 
contract  alive,  for  the  benefit  of  the  other  party  as  well  as  his 
own;  he  remains  subject  to  all  his  own  obligations  and  liabilities 
under  it,  and  enables  the  other  party  not  only  to  complete  the 
contract,  if  so  advised,  notwithstanding  his  previous  repudiation 
of  it,  but  also  to  take  advantage  of  any  supervening  circumstance 
which  would  justify  him  in  declining  to  complete  it. 

"On  the  other  hand,  the  promisee  may,  if  he  thinks  proper, 
treat  the  repudiation  of  the  other  party  as  a  wrongful  putting  an 
end  to  the  contract,  and  may  at  once  bring  his  action  as  on  a 
breach  of  it ;  and  in  such  action  he  will  be  entitled  to  such  dam- 
ages as  would  have  arisen  from  the  non-performance  of  the  con- 
tract at  the  appointed  time;  subject,  however,  to  abatement  in 
respect  of  any  circumstances  which  may  have  afforded  him  the 
means  of  mitigating  his  loss. 


372  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

*'This  is  now  settled  law,  notwithstanding  any  thing  that  may 
have  been  held  or  said  in  Philpotts  v.  Evans,  5  ]\[.  &  W.  475,  and 
Ripley  v.  McClure,  4  Exch.  359."     Pages  112,  113. 

This  prineiple  was  recognized  in  the  very  recent  case  of  Roper 
V.  Johnson,  L.  R.  8  C.  P.  167,  where  the  further  rule  was  laid 
down,  as  a  deduction  from  the  decisions  above  stated,  that  in  case 
the  plaintiff  elected  to  treat  the  contract  (for  the  delivery  of 
coal)  as  broken,  by  the  refusal  of  the  defendant  to  perform 
prior  to  the  days  designated  for  delivery,  the  measure  of  damages 
was  prima  facie  the  difference  between  the  contract  price  and 
the  market  price  at  the  several  periods  fixed  for  delivery,  not- 
withstanding those  periods  had  not  all  elapsed  when  the  action 
was  brought,  nor  even  when  it  was  tried.  The  damages  could 
be  mitigated  by  proof  that  the  plaintiff  could  have  procured  the 
coal  at  lower  rates.  As  no  such  proof  was  offered,  the  full  differ- 
ence between  the  two  rates  was  recovered.  There  is  also  a  dictum 
in  Brown  v.  ]\Iuller,  L.  R.  7  Exch.  323,  to  the  same  effect. 

The  question  now  under  consideration  was  discussed  in  Crist 
v.  Armour,  34  Barb.  378,  and  the  case  of  Hochster  v.  De  La  Tour 
approved.  The  facts  in  Crist  v.  Armour  did  not  involve  the 
precise  point  in  the  case  at  bar,  since  the  vendor,  who  had 
contracted  to  sell  a  quantity  of  cheese  at  a  specified  day,  sold  it 
to  another  before  that  day  arrived,  and  put  it  out  of  his  power 
to  perform  the  contract.  The  principle  is  substantially  the  same, 
however,  as  that  adopted  in  the  English  cases.  No  appreciable 
distinction  can  be  stated  between  the  present  case  and  that  of 
Burtis  v.  Thompson,  42  N.  Y.  246.  In  that  case  there  was  an 
engagement  to  marry  "in  the  fall."  The  defendant  announced 
to  the  plaintiff',  in  October,  that  he  would  not  perform  his  con- 
tract. It  was  held  that  an  action  commenced  immediately  was 
not  premature.  The  opinions  given  by  Ingalls,  J.,  and  Grover, 
J.,  do  not  proceed  on  the  same  theory.  The  view  of  the  latter 
judge  coincides,  in  substance,  with  that  of  Hochster  v.  De  La 
Tour,  and  is  the  only  one  on  which  the  judgment  can  properly 
be  supported.  The  fair  construction  of  the  words  "in  the  fall," 
would  have  given  the  defendant  until  the  last  day  of  November 
to  perform  had  there  been  no  refusal  on  his  part.  It  was  the 
renunciation  of  his  contract  in  October  which  made  the  action 
not  premature.  If  the  case  is  good  law,  it  is  difficult  to  main- 
tain any  distinction  between  it  and  the  contract  of  service. 
Chief  Baron  Kelly,  in  Frost  v.  Knight,  supra,  attempted  to  draw 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  373 

a  distinction  between  the  contract  oi  marriage  and  the  other 
contracts.  This  was  discarded  by  the  Court  of  Exchequer 
Chamber,  Avhich  held  the  rule  in  Hochster  v.  De  La  Tour  to  be 
universal  in  its  application  to  contracts  to  be  performed  at  a 
future  day ;  though  I  presume  that  it  would  scarcely  be  extended 
to  mere  promises  to  pay  money,  or  other  cases  of  that  nature, 
where  there  are  no  mutual  stipulations. 

The  whole  result  of  the  discussion  may  now  be  summed  up. 
If  the  defendant  in  the  case  at  bar  repudiated  his  contract  with 
the  plaintiff  after  the  time  of  performance  had  arrived,  the 
plaintiff  had  an  action  for  damages.  Her  interview  with  the 
defendant  sufficiently  shoM'ed  her  readiness  to  perform.  Her 
action  was  for  damages  for  not  being  permitted  to  work,  and 
not  for  wages ;  and  the  defendant  might  show  affirmatively,  and 
by  way  of  mitigation  of  damages,  that  she  had  opportunities  to 
make  a  theatrical  engagement  elsewhere,  which  she  did  not 
accept.  Without  such  proof  she  was  entitled  to  recover  the  full 
amount  of  the  compensation  stipulated  in  the  contract. 

On  the  other  hand,  if  the  defendant  rejected  the  services  of 
the  plaintiff  before  the  time  of  performance  arrived,  she  had  an 
election  either  to  consider  his  act  as  a  breach  of  an  implied  con- 
tract with  her  to  take  her  into  his  service,  and  bring  an  imme- 
diate action ;  or  to  wait  till  the  appointed  day  arrived,  and  then 
be  in  readiness  to  render  her  services.  Her  election  will  be 
evidenced  by  her  acts.  Having  made  no  tender  of  her  services 
at  the  appointed  day,  the  presumption  is,  that  she  considered 
the  act  of  repudiation  by  the  defendant  as  final,  and  now  brings 
her  action  for  damages.  Her  complaint  in  the  action  and  the 
evidence  taken  at  the  trial  are  sufficient  to  establish  such  a  claim. 
Her  damages  are,  as  in  the  other  hj^^othesis,  prima  facie  the 
entire  amount  of  her  compensation,  unless  proof  was  offered  in 
mitigation  of  damages,  which  was  not  done.  In  either  aspect  of 
the  case  the  verdict  and  judgment  were  right. 

My  brethren  concur  with  me  upon  the  first  ground  set  forth 
in  this  opinion,  without  expressing,  their  views  upon  the  correct- 
ness of  the  rule  in  Hochster  v.  De  La  Tour,  and  kindred  cases. 

The  judgment  of  the  court  below  must  be  affirmed.  All  con- 
cur. Judgment  affirmed. 


374  DAMACiKS    IxN    ACTIONS   ON    CONTRACTS. 

SUTHERLAND  v.  WYER. 

Maine,  1S77.     G7  Me.  64. 

Assumpsit  to  roi'ovcr  damages  for  broach  of  contract  under 
which  plaintiff  agreed  to  ph\y  for  defendants  at  a  museum  in 
Portland,  iMaine. 

Virgin,  J.  The  plaintiff  contracted  with  the  defendants  to 
"play  first  old  man  and  character  business,  at  the  Portland 
museum,  and  to  do  all  things  requisite  and  necessary  to  any  and 
all  performances  which"  the  defendants  "shall  designate,  and  to 
conform  strictly  to  all  the  rules  and  regulations  of  said  theatre, ' ' 
for  thirty-six  weeks,  commencing  on  Sept.  6,  1875,  at  thirty-five 
dollars  per  week;  and  the  defendants  agreed  "to  pay  him  thirty- 
five  dollars  for  every  week  of  public  theatrical  representations 
during  said  season."  By  one  of  the  rules  mentioned,  the  de- 
fendants "reserved  the  right  to  discharge  any  person  who  may 
have  imposed  on  them  by  engaging  for  a  position  which,  in  their 
judgment,  he  is  incompetent  to  fill  properly." 

The  plaintiff  entered  upon  his  service  under  the  contract,  at 
the  time  mentioned  therein,  and  continued  to  perform  the  theat- 
rical characterizations  assigned  to  him,  without  any  suggestion 
of  incompetency,  and  to  receive  the  stipulated  weekly  salary, 
until  the  end  of  the  eighteenth  week ;  when  he  was  discharged  by 
the  defendants,  as  they  contended  before  the  jury,  for  incom- 
petency imder  the  rule ;  but,  as  the  plaintiff  there  contended,  for 
the  reason  that  he  declined  to  accept  twenty-four  dollars  per 
W'Cek  during  the  remainder  of  his  term  of  service. 

Three  days  after  his  discharge  and  before  the  expiration  of 
the  nineteenth  week,  the  plaintiff  commenced  this  action  to  re- 
cover damages  for  the  defendants'  breach  of  the  contract.  The 
action  w^as  not  premature.  The  contract  was  entire  and  in- 
divisible. The  performance  of  it  had  been  commenced,  and  the 
plaintiff  been  discharged  and  thereby  been  prevented  from  the 
further  execution  of  it:  and  the  action  was  not  brought  until 
after  the  discharge  and  consequent  breach.  Howard  v.  Daly, 
61  N.  Y.  362,  and  cases.  Dugan  v.  Anderson,  36  Md.  567,  and 
cases.  The  doctrine  of  Daniels  v.  Newton,  114  Mass.  530,  is  not 
opposed  to  this.  Neither  do  the  defendants  insist  that  the  action 
v;as  prematurely  commenced ;  but  they  contend  that  the  verdict 
should  be  set  aside  as  being  against  the  weight  of  evidence. 

The  verdict  was  for  the  plaintiff.    The  jury  must,  therefore, 


CONTEACTS  RELATING  TO  WORK  AND  SERVICES.  375 

have  found  the  real  cause  of  his  discharge  to  be  his  refusal  to 
consent  to  the  proposed  reduction  of  his  salary.  The  evidence 
upon  this  point  was  quite  coniiicting.  Considering  that  all  the 
company  were  notified,  at  the  same  time,  that  their  respective 
salaries  would  be  reduced  one-third,  without  assigning  any  such 
cause  as  incompetency;  that  no  suggestion  of  the  plaintiff's  in- 
competency was  ever  made  to  him,  prior  to  his  discharge ;  and 
that  his  written  discharge  was  equally  silent  upon  that  subject, 
we  fail  to  find  sufficient  reason  for  disturbing  the  verdict  upon 
this  groimd  of  the  motion,  especially  since  the  jury  might  well 
find  as  they  did  on  this  branch  of  the  case,  provided  they  be- 
lieved the  testimony  in  behalf  of  the  plaintiff. 

There  are  several  classes  of  cases  founded  both  in  tort  and  in 
contract,  wherein  the  plaintiff  is  entitled  to  recover,  not  only 
the  damages  actually  sustained  when  the  action  was  commenced, 
or  at  the  time  of  the  trial,  but  also  whatever  the  evidence  proves 
he  will  be  likely  to  suffer  thereafter  from  the  same  cause.  Among 
the  torts  coming  within  this  rule  are  personal  injuries  caused  by 
the  wrongful  acts  or  negligence  of  others.  The  injury  continuing 
beyond  the  time  of  trial,  the  future  as  well  as  the  past  is  to  be 
considered,  since  no  other  action  can  be  maintained.  So  in  cases 
of  contract  the  performance  of  which  is  to  extend  through  a 
period  of  time  which  has  not  elapsed  when  the  breach  is  made 
and  the  action  brought  therefor  and  the  trial  had.  Remelee  v. 
Hall,  31  Vt.  582.  Among  these  are  actions  on  bonds  or  un- 
sealed contracts  stipulating  for  the  support  of  persons  during 
their  natural  life.  Sibley  v.  Rider,  54  Maine,  463.  Philbrook  v. 
Burgess,  52  Maine,  271. 

The  contract  in  controversy  falls  within  the  same  rule.  Al- 
though, as  practically  construed  by  the  parties,  the  salary  was 
payable  weekly,  still,  when  the  plaintiff  was  peremptorily  dis- 
charged from  all  further  service  during  the  remainder  of  the 
season,  such  discharge  conferred  upon  him  the  right  to  treat 
the  contract  as  entirely  at  an  end,  and  to  bring  his  action  to 
recover  damages  for  the  breach.  In  such  action  he  is  entitled 
to  a  just  recompense  for  the  actual  injury  sustained  by  the 
illegal  discharge.  Prima  facie,  such  recompense  would  be  the 
stipulated  wages  for  the  remaining  eighteen  weeks.  This,  how- 
ever, would  not  necessarily  be  the  sum  which  he  would  be  en- 
titled to;  for,  in  cases  of  contract  as  well  as  of  tort,  it  is  gen- 
erally incumbent  upon  an  injured  party  to  do  whatever  he  rea- 


376  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

sonably  eau,  aud  to  improve  all  reasonable  and  proper  oppor- 
tunities to  lessen  the  injury.  Miller  v.  Mariners'  Church,  7 
I\laine,  51,  56 ;  Jones  v.  Jones,  4  Md.  609 ;  2  Greenl.  Ev.  §  261, 
aud  notes;  Chamberliu  v.  Morgan,  68  Pa.  St.  168;  Sedg.  on 
Dam.  (6th  ed.)  416,  417,  cases  supra.  The  plaintiff  could  not  be 
justified  in  lying  idle  after  the  breach ;  but  he  was  boimd  to  use 
ordinary  diligence  in  securing  ouiployment  elsewhere,  during 
the  remainder  of  the  term ;  and  whatever  sum  he  actually  earned 
or  might  have  earned  by  the  use  of  reasonable  diligence,  should 
be  deducted  from  the  amount  of  the  unpaid  stipulated  wages. 
And  this  balance,  with  interest  thereon,  should  be  the  amount 
of  the  verdict.  Applying  the  rule  mentioned,  the  verdict  will 
be  found  too  large. 

By  the  plaintiff's  own  testimony,  he  received  only  $60,  from 
all  sources  after  his  discharge, — $25  in  February  and  $35  from 
the  10th  to  the  20th  of  April,  at  Booth's.  His  last  engagement 
was  for  eight  weeks,  commencing  April  10,  which  he  abandoned 
on  the  20th,  thus  vohmtarily  omitting  an  opportunity  to  earn 
$57.  prior  to  the  expiration  of  his  engagement  with  the  defend- 
ants, when  the  law  required  him  to  improve  such  an  opportunity, 
if  reasonable  and  proper.  We  think  he  should  have  continued 
the  last  engagement  until  May  6,  instead  of  abandoning  it  aud 
urging  a  trial  in  April,  especially  inasmuch  as  he  could  have  ob- 
tained a  trial  in  May,  just  as  well.  The  instructions  taken  to- 
gether were  as  favorable  to  the  defendants  as  they  were  entitled 
to. 

If,  therefore,  the  plaintiff  will  remit  $57,  he  may  have  judg- 
ment for  the  balance  of  the  verdict;  otherwise  the  entry  must 
be  verdict  set  aside  and  new  trial  granted. 

All  concur. 


McMULLEN  v.  DICKINSON  CO. 

Minnesota,  1895.     60  Minn.  156. 

Canty,  J.  On  the  25th  of  February,  1892,  the  plaintiff 
entered  into  a  written  agreement  with  the  defendant  corporation, 
whereby  it  agreed  to  employ  him  as  its  assistant  manager,  from 
and  after  that  date,  as  long  as  he  should  own  in  his  own  name 
50  shares  of  the  capital  stock  of  said  corporation,  fully  paid  up, 
and  the  business  of  said  corporation  shall  be  continued,  not  ex- 
ceeding the  term  of  the  existence  of  said  corporation,  and  pay 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  377 

him  for  such  services  the  sum  of  $1,500  per  annum,  payable 
monthly  during  that  time,  and  whereby  he  agreed  to  perform 
said  services  during  that  time.  He  has  ever  since  ovmed,  as 
provided,  the  50  shares  of  said  stock,  and  performed  said 
services  ever  since  that  time  until  the  28th  of  October,  1893, 
when  he  was  discharged  and  dismissed  by  the  defendant  without 
cause.  He  alleges  these  facts  in  his  complaint  in  this  action, 
and  also  alleges  that  he  has  been  ever  since  he  was  so  dismissed, 
and  is  now,  ready  and  willing  to  perform  said  services  as  so 
agreed  upon,  and  that  there  is  now  due  him  the  sum  of  $125 
for  each  of  the  months  of  March  and  April,  1894,  and  prays 
judgment  for  the  sum  of  $250.  The  defendant  in  its  answer,  for 
a  second  defense,  alleges  that  on  INIarch  2,  1894,  plaintiff  com- 
menced a  similar  action  to  this  for  the  recovery  of  the  sum  of 
$512,  for  the  period  of  time  from  his  said  discharge  to  the  1st  of 
March,  1894,  alleging  the  same  facts  and  the  same  breach,  and 
that  on  April  16,  1894,  he  recovered  judgment  in  that  action 
against  this  defendant  for  that  sum  and  costs,  and  this  is  pleaded 
in  bar  of  the  present  action.  The  plaintiff  demurred  to  this  de- 
fense, and  from  an  order  sustaining  the  demurrer  the  defendant 
appeals. 

The  plaintiff  brought  each  action  for  installments  of  wages 
claimed  to  be  due,  on  the  theory  of  constructive  service.  The 
doctrine  of  constructive  service  was  first  laid  down  by  Lord 
Ellenborough  in  Gandell  v.  Pontigny,  4  Campb.  375,  and  this 
case  was  followed  in  England  and  this  country  for  a  long  time 
(Wood,  Mast.  &  Serv.  254),  and  is  still  upheld  by  several  courts 
(Isaacs  V.  Davies,  68  Ga.  169;  Armfield  v.  Nash,  31  Miss.  361; 
Strauss  v.  Meertief,  64  Ala.  299) .  It  has  been  repudiated  by  the 
courts  of  England  (Goodman  v.  Pocock,  15  Adol.  &  E.  [N.  S.] 
574;  Wood,  ]\Iast.  &  Serv.  254),  and  by  many  of  the  courts  in 
this  country  (Id.;  and  notes  to  Decamp  v.  Hewitt,  43  Am.  Dec. 
204) ,  as  unsound  and  inconsistent  with  itself,  as  it  assumes  that 
the  discharged  servant  has  since  his  discharge  remained  ready, 
willing,  and  able  to  perform  the  services  for  which  he  was  hired, 
while  sound  principles  require  him  to  seek  employment  else- 
where, and  thereby  mitigate  the  damages  caused  by  his  dis- 
charge. His  remedy  is  for  damages  for  breach  of  the  contract, 
and  not  for  wages  for  its  performance.  But  the  courts,  which 
deny  his  right  to  recover  wages  as  for  constructive  service,  have 
denied  him  any  remedy  except  one  for  damages,  which,  if  seem- 


378  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

ingly  more  logical  in  theory,  is  most  absurd  in  its  practical 
results.  These  courts  give  him  no  remedy  except  the  one  which 
is  given  for  the  recovery  of  loss  of  prolit  for  the  breach  of  other 
contracts,  and  hold  that  the  contract  is  entire,  even  though  the 
wages  are  payable  in  installments,  and  that  he  exhausts  his 
remedy  by  an  action  for  a  part  of  such  damages,  no  matter  how 
long  the  contract  would  have  rim  if  it  had  not  been  broken.  See 
James  v.  Allen  Co.,  44  Ohio  St.  226 ;  Moody  v.  Leverich,  4  Daly 
(N.  Y.)  401;  Colburn  v.  Woodworth,  31  Barb.  (N.  Y.)  381; 
Booge  V.  Railroad  Co.,  33  Mo.  212. 

No  one  action  to  recover  all  the  damages  for  such  a  breach  of 
such  a  contract  can  furnish  any  adequate  remedy,  or  do  anything 
like  substantial  justice  between  the  parties.  By  its  charter  the 
life  of  this  corporation  is  thirty  years.  If  the  action  is  com- 
menced immediately  after  the  breach,  how  can  prospective  dam- 
ages be  assessed  for  this  thirty  years,  or  for  even  one  year  ?  To 
presume  that  the  discharged  servant  will  not  be  able  for  a  large 
part  of  that  time  to  obtain  other  employment,  and  award  him 
large  damages,  might  be  grossly  unjust  to  the  defendant.  Again, 
the  servant  is  entitled  to  actual  indemnity,  not  to  such  specula- 
tive indemnity  as  must  necessarily  be  given  by  awarding  him 
prospective  damages.  His  contract  was  not  a  speculative  one, 
and  the  law  should  not  make  it  such.  That  men  can  and  do  find 
employment  is  the  general  rule,  and  enforced  idleness  the  ex- 
ception. It  should  not  be  presumed  in  advance  that  the  excep- 
tional will  occur. 

This  is  not  in  conflict  with  the  rule  that,  in  an  action  for  retro- 
spective damages  for  such  a  breach,  the  burden  is  on  the  defend- 
ant to  show  that  the  discharged  servant  could  have  found  em- 
ployment. In  that  case,  as  in  others,  reasonable  diligence  will 
be  presumed.  When  it  appears  that  he  has  not  found  employ- 
ment or  been  employed,  there  is  no  presumption  that  it  was  his 
fault,  and,  under  such  circumstances,  it  will  be  presumed  that 
the  exceptional  has  happened.  But  to  presume  that  the  excep- 
tional will  happen  is  very  different.  In  an  action  for  such  a 
breach  of  a  contract  for  services,  prospective  damages  beyond 
the  day  of  trial  are  too  contingent  and  uncertain,  and  cannot 
be  assessed.  2  Suth.  Dam.  471 ;  Gordon  v.  Brewster,  7  Wis.  355 ; 
Fowler  &  Proutt  v.  Armour,  24  Ala.  194 ;  Wright  v.  Falkner,  37 
Ala.  274;  Colburn  v.  Woodworth,  31  Barb.  (N.  Y.)  385. 

Then,  if  the  discharged  servant  can  have  but  one  action,  it 


CONTRACTS  RELATING  TO  WORK  AND  SERVICES.  379 

is  necessary  for  him  to  starve  and  wait  as  long  as  possible  before 
commencing  it.  If  he  waits  longer  than  six  years  after  the 
breach,  the  statute  of  limitations  will  have  run,  and  he  will  lose 
his  whole  claim.  If  he  brings  his  action  within  the  six  years,  he 
will  lose  his  claim  for  the  balance  of  the  time  after  the  day  of 
trial.  Under  this  rule,  the  measure  of  damages  for  the  breach 
of  a  30  year  contract  is  no  greater  than  for  the  breach  of  a  6  or 
7  year  contract.  Such  a  remedy  is  a  travesty  on  justice. 
Although  the  servant  has  stipulated  for  a  weekly,  monthly,  or 
quarterly  income,  it  assumes  that  he  can  live  for  years  without 
any  income,  after  which  time  he  will  cease  to  live  or  need  income. 
The  fallacy  lies  in  assuming  that,  on  the  breach  of  the  con- 
tract, loss  of  wages  is  analogous  to  loss  of  profits,  and  that  the 
same  rule  of  damages  applies,  while  in  fact  the  cases  are  wholly 
dissimilar,  and  there  is  scarcely  a  parallel  between  them.  In 
the  one  case  the  liability  is  absolute;  in  the  other  it  is  contin- 
gent. If  the  rule  of  damages  were  the  same,  then,  in  the  case  of 
the  breach  of  the  contract  for  service,  the  discharged  servant 
should  be  allowed  only  the  amount  which  the  stipulated  wages 
exceed  the  market  value  of  the  service  to  be  performed,  without 
regard  to  whether  he  could  obtain  other  employment  or  not.  If 
the  stipulated  wages  did  not  exceed  the  market  value  of  the 
service,  he  would  be  entitled  to  only  nominal  damages ;  and  in  no 
case  could  his  failure  to  find  other  employment  vary  the  measure 
of  damages.  Clearly,  this  is  not  the  rule.  In  the  one  case  the 
liability  is  a  contingent  liability  for  loss  of  wages;  in  the  other 
case  it  is  an  absolute  liability  for  loss  of  profits.  Such  contin- 
gent liability  cannot  be  ascertained  in  advance  of  the  happening 
of  the  contingency,  and  that  is  why  prospective  damages  for  loss 
of  wages  are  too  contingent  and  are  too  speculative  and  uncertain 
to  be  allowed,  while  retrospective  damages  for  such  loss  are  of 
the  most  certain  character.  On  the  other  hand,  if  damages  for 
loss  of  profits  are  too  speculative  and  uncertain  to  be  allowed, 
they  are  equally  so,  whether  prospective  or  retrospective.  ' '  The 
pecuniary  advantages  which  would  have  been  realized  but  for 
the  defendant's  act  must  be  ascertained  without  the  aid  which 
their  actual  existence  would  afiford.  The  plaintiff's  right  to  re- 
cover for  such  a  loss  depends  on  his  proving  with  sufficient  cer- 
tainty that  such  advantages  would  have  resulted,  and,  therefore, 
that  the  act  complained  of  prevented  him."     1  Suth.  Dam.  107. 

It  is  our  opinion  that  the  servant  Avrongfully  discharged  is  en- 


380  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

titled  to  indenuiity  for  loss  of  wages,  iuid  for  the  full  measure 
of  this  indemnity  the  master  is  clearly  liable.  This  liability  ac- 
crues by  installments  on  successive  contingencies.  p]ach  con- 
tingency consists  in  the  failure  of  the  servant  without  his  fault 
to  earn,  during  the  installment  period  named  in  the  contract, 
the  amount  of  wages  which  he  would  have  earned  if  the  con- 
tract had  been  performed,  and  the  m^ister  is  liable  for  the  de- 
ficienc3^  This  rule  of  damages  is  not  consistent  with  the  doc- 
trine of  constructive  service,  but  it  is  the  rule  which  has  usually 
been  applied  by  the  courts  which  adopted  that  doctrine.  Under 
that  doctrine  the  master  should  be  held  liable  to  the  discharged 
servant  for  wages  as  if  earned,  while  in  fact  he  is  held  only  for 
indemnity  for  loss  of  wages.  The  fiction  of  constructive  service 
is  false  and  illogical,  but  the  measure  of  damages  given  under 
that  fiction  is  correct  and  logical.  It  is  simply  a  case  of  a  wrong 
reason  given  for  a  correct  rule.  Instead  of  rejecting  the  false 
reason  and  retaining  the  correct  rule,  many  courts  have  re- 
jected both  the  rule  and  the  reason.  In  our  opinion,  this  rule 
of  damages  should  be  retained ;  but  the  true  ground  on  which  it 
is  based  is  not  that  of  constructive  service,  but  the  liability  of 
the  master  to  indemnify  the  discharged  servant,  not  to  pay  him 
wages,  and  this  indemnity  accrues  by  installments.  The  original 
breach  is  not  total,  but  the  failure  to  pay  the  successive  install- 
ments constitutes  successive  breaches.  Since  the  days  of  Lord 
EUenborough  this  class  of  cases  has  been  in  some  courts  an 
exception  to  the  rule  that  there  can  be  but  one  action  for  dam- 
ages for  the  breach  of  a  contract,  and  there  are  strong  reasons 
why  it  should  be  an  exception.  Because  the  discharged  servant 
may,  if  he  so  elects,  bring  successive  actions  for  the  installments 
of  indemnity  as  they  accrue,  it  does  not  follow  that  he  cannot 
elect  to  consider  the  breach  total,  and  bring  one  action  for  all 
his  damages,  and  recover  all  of  the  same  accruing  up  to  the  time 
of  trial. 

The  order  appealed  from  shoidd  he  affirmed.    So  ordered. 

Where  plaintiff  who  has  made  a  contract  to  render  personal  services, 
is  prevented  from  carrying  it  out  by  an  act  of  the  employer,  the 
plaintiff  is  not  bound,  in  order  to  reduce  defendant's  obligation  to  him, 
to  accept  and  continue  in  the  employ  of  defendant  himself  at  a  reduced 
compensation.     Chisholm  v.  Preferred  Bankers,  112  Mich.  55. 

"Where  a  party  is  wrongfully  discharged  by  the  employer  before 
the  expiration  of  the  contract  period,  he  may  wait  until  such  period 
arrives  and  then  recover  against  the  employer   the  wages   he  would 


BREACH    OF    CONTRACT    TO    TRANSPORT    PASSENGERS.  381 

have  earned  but  for  such  wrongful  discharge,  less  what  he  could  have 
earned  by  employment  elsewhere,  which  will  be  in  reduction  of  dam- 
ages."    Winkler  v.  Racine  Co.,  99  Wis.  187. 

Where  a  party  agrees  to  take  an  advertisement  and  pay  therefor, 
he  may  nevertheless  stop  performance  by  an  absolute  renunciation  of 
the  contract.  The  newspaper  proprietor  can  get  damages  for  the 
breach,  minus  such  sum  as  he  might  have  obtained  by  the  use  of 
reasonable  efforts  to  obtain  other  advertisements  at  the  best  price 
obtainable.  Tradesman  Co.  v.  Superior  Mfg.  Co.,  147  Mich.  70.5.  See 
also   Keystone  I'ul).  Co.   v.  Roman,   110  N.   Y.   Supp.  654. 

In  Chase  v.  Alaska  F.  &  L.  Co.  2  Alaska  Reports  82,  it  was  held 
that  when  a  servant  is  wrongfully  discharged,  but  his  wages  are  paid 
up  to  that  time,  he  cannot  recover  for  future  instalments  for  con- 
structive service,   but  only  for  the  breach   of  contract. 

In  Peterson  v.  Drew,  2  Alaska  Reports  560,  where  a  contract  for 
labor  for  a  fixed  wage  and  period  is  broken  by  the  discharge  of  the 
laborer,  he  cannot  recover  full  wages  if  he  fails  to  exercise  reasonable 
diligence  in  seeking  other  employment,  and  thus  reducing,  or  attempt- 
ing to  reduce  the  damages  or  loss  to  himself  resulting  from  the 
wrongful  discharge. 


4.     Breach  of  Contract  to  Transport  Passengers. 
HOBBS  V.  LONDON  &  SOUTHWESTERN  RAILWAY. 

Queen's  Bench,  1875.    L.  R.  10  Q.  B.  111. 

Action  to  recover  damages  for  breach  of  contract. 

CocKBURN,  C.  J.,  We  are  of  opinion  that  this  rule  should  be 
made  absolute  as  regards  the  20  1.  damages  given  in  respect  of  the 
consequences  of  the  wife  having  caught  cold  in  this  walk  from 
Esher  to  Hampton ;  but  that  it  should  be  discharged  as  regards 
the  8  1.  in  respect  to  the  personal  inconvenience  suffered  by  the 
husband  and  the  wife  in  consequence  of  their  not  being  taken  to, 
or  put  down  at  their  proper  place  of  destination. 

The  facts  are  simple.  The  plaintiffs  took  tickets  to  be  con- 
veyed from  the  Wimbledon  station  of  the  defendants'  railway  to 
Hampton  Court.  It  so  happened  that  the  train  did  not  go  to 
Hampton  Court,  and  the  plaintiffs  were  taken  on  to  Esher  Sta- 
tion, which  increased  the  distance  which  they  would  have  to  go 
from  the  railway  station  to  their  home  by  two  or  three  miles. 

Damages  were  asked  for  upon  two  grounds:  first,  for  the  in- 
convenience that  the  husband  and  wife,  with  their  two  chil- 
dren, sustained  by  having  to  go  this  distance,  the  night  happen- 


382  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

ing  to  be  a  wet  night;  in  the  second  phiee,  damages  were  asked 
by  reason  of  the  wife,  from  her  exposure  to  the  wet  on  that  night, 
getting  a  bad  cokl  and  being  ill  in  health,  the  consequence  of 
which  was  that  some  expense  was  incurred  in  medical  attendance 
upon  her.  AVe  think  these  two  heads  of  damage  must  be  kept 
distinct,  and  I  propose  to  deal  with  them  as  distinct  subjects. 

AVitli  regard  to  the  first,  there  can  be  no  doubt  whatever  upon 
the  facts  that  the  plaintiffs  were  put  to  personal  inconvenience : 
they  had  to  walk  late  at  night,  after  twelve  o'clock,  a  consider- 
able distance,  the  wife  suffered  fatigue  from  it,  and  they  had  to 
carry  their  children  or  to  get  them  along  with  great  difficulty, 
the  children  being  fatigued  and  exhausted;  and  there  is  no 
doubt  .that  there  was  personal  inconvenience  suffered  by  the 
party  on  that  occasion,  and  that  inconvenience  was  the  immediate 
consequence  and  result  of  the  breach  of  contract  on  the  part  of 
the  defendants.  The  plaintiffs  did  their  best  to  diminish  the 
inconvenience  to  themselves  by  having  recourse  to  such  means  as 
they  hoped  to  find  at  hand ;  they  tried  to  get  into  an  inn,  which 
they  were  unable  to  do;  they  tried  to  get  a  conveyance;  they 
were  informed  none  was  to  be  had;  and  they  had  no  alter- 
native but  to  walk ;  and  therefore  it  was  from  no  default  on  their 
part,  and  it  cannot  be  doubted  that  the  inconvenience  was  the 
immediate  and  necessary  consequence  of  the  breach  of  the  de- 
fendants' contract  to  convey  them  to  Hampton  Court.  Now  in- 
asmuch as  there  was  manifest  personal  inconvenience,  I  am  at  a 
loss  to  see  why  that  inconvenience  should  not  be  compensated  by 
damages  in  such  an  action  as  this.  It  has  been  endeavored  to 
be  argued,  upon  principle  and  upon  authority,  that  this  was  a 
kind  of  damage  which  could  not  be  supported ;  and  attempts 
were  also  made  to  satisfy  us  that  this  supposed  inconvenience 
was  more  or  less  imaginary,  and  would  depend  upon  the  strength 
and  constitution  of  the  parties,  and  various  other  circumstances ; 
and  that  it  is  not  to  be  taken  that  a  walk  of  so  many  additional 
miles  would  be  a  thing  that  a  person  would  dislike  or  suffer  in- 
convenience from ;  and  that  there  may  be  circumstances  under 
which  a  walk  of  several  miles,  so  far  from  being  matter  of  in- 
convenience, would  be  just  the  contrary.  All  that  depends  on 
the  actual  facts  of  each  individual  case ;  and  if  the  jury  are  satis- 
fied that  in  the  particular  instance  personal  inconvenience  or 
suffering  has  been  occasioned,  and  that  it  has  been  occasioned 
as  the  immediate  effect  of  the  breach  of  the  contract,  I  can  see  no 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     383 

reasonable  principle  why  that  should  not  be  compensated  for. 
The  case  of  Hamlin  v.  Great  Northern  Ry.  Co.,  1  H.  &  N.  408 ; 
26  L.  J.  (Ex.)  20,  was  cited  as  an  authority  to  show  that  for 
personal  inconvenience  damages  ought  not  to  be  awarded.  That 
case  appears  to  me  to  fall  far  short  of  any  such  proposition.  It 
merely  seems  to  amount  to  this :  that  where  a  party,  by  not  being 
able  to  get  to  a  place  which  he  would  otherwise  have  arrived  at 
in  time  to  meet  persons  with  whom  he  had  appointments,  had 
sustained  pecuniary  loss,  that  is  too  remote  to  be  made  the  sub- 
ject of  damages  in  an  action  upon  a  breach  of  contract.  That 
may  be  perfectly  true,  because,  as  in  every  one  of  the  instances 
cited,  you  would  have  to  go  into  the  question  whether  there  was 
a  loss  arising  from  the  breach  of  contract,  before  you  could  assess 
that  loss.  And,  after  all,  if  the  true  principle  be  laid  doAvn  in 
Hadley  v.  Baxendale,  9  Ex.  341;  23  L.  J.  (Ex.)  179,  the  damage 
must  be  something  which  is  in  the  contemplation  of  the  parties 
as  likely  to  result  from  a  breach  of  contract ;  and  it  is  impossible 
that  a  company  who  undertake  to  carry  a  passenger  to  a  place 
of  destination  can  have  in  their  minds  all  the  circumstances 
which  may  result  from  the  passenger  being  detained  on  the  jour- 
ney. As  far  as  the  case  of  Hamlin  v.  Great  Northern  Ry.  Co. 
goes,  I  am  far  from  saying  it  was  a  wrong  decision;  but  it  did 
not  decide  that  personal  inconvenience,  however  serious,  was 
not  to  be  taken  into  account  as  a  subject-matter  of  damage  in  a 
breach  of  contract  of  a  carrier  to  convey  a  person  to  a  particular 
destination.  If  it  did,  I  should  not  follow  that  authority ;  but  I 
do  not  think  it  applicable  to  this  case  at  all.  I  think  there  is 
no  authority  that  personal  inconvenience,  where  it  is  sufficiently 
serious,  should  not  be  the  subject  of  damages  to  be  recovered  in 
an  action  of  this  kind.  Therefore,  on  the  first  head,  the  8  1.,  I 
think  the  verdict  ought  to  stand. 

"With  regard  to  the  second  head  of  damage,  the  case  assumes  a 
very  different  aspect.  I  see  very  great  difficulty  indeed  in  com- 
ing to  any  other  conclusion  than  that  the  20  1.  is  not  recoverable ; 
and  when  we  are  asked  to  lay  doA\'n  some  principle  as  a  guiding 
rule  in  all  such  cases.  I  quite  agree  with  my  Brother  Blackburn 
in  the  infinite  difficulty  there  would  be  in  attempting  to  lay  down 
any  principle  or  rule  which  shall  cover  all  such  cases;  but  I 
think  that  the  nearest  approach  to  anything  like  a  fixed  rule  is 
this :  That  to  entitle  a  person  to  damages  by  reason  of  a  breach 
of  contract,  the  injury  for  which  compensation  is  asked  should 


384  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

be  one  that  may  be  fairly  taken  to  have  been  contcmphited  by 
the  parties  as  the  possible  result  of  the  breach  of  contract.  There- 
fore you  must  have  something  immediately  flowing  out  of  the 
breach  of  contract  complained  of,  something  immediately  con- 
nected with  it,  and  not  merely  connected  with  it  througli  a  series 
of  causes  intervening  between  the  immediate  consequence  of  the 
breach  of  contract  and  the  damage  or  injury  complained  of.  To 
illustrate  that  1  cannot  take  a  better  case  than  the  one  now  be- 
fore us:  Suppose  that  a  passenger  is  put  out  at  a  wrong  sta- 
tion on  a  wet  night  and  obliged  to  walk  a  considerable  distance 
in  the  rain,  catching  a  violent  cold  which  ends  in  a  fever,  and  the 
passenger  is  laid  up  for  a  couple  of  months,  and  loses  through 
this  illness  the  offer  of  an  employment  which  would  have  brought 
him  a  handsome  salary.  No  one,  I  think,  who  understood  the 
law,  would  say  that  the  loss  so  occasioned  is  so  connected  with 
the  breach  of  contract  as  that  the  carrier  breaking  the  contract 
could  be  held  liable.  Here,  I  think,  it  cannot  be  said  the  catch- 
ing cold  by  the  plaintiff's  wife  is  the  immediate  and  necessary 
effect  of  the  breach  of  contract,  or  was  one  which  could  be  fairly 
said  to  have  been  in  the  contemplation  of  the  parties.  As  my 
Brother  Blackburn  points  out,  so  far  as  the  inconvenience  of  the 
walk  home  is  concerned,  that  must  be  taken  to  be  reasonably 
within  the  contemplation  of  the  parties ;  because,  if  a  carrier  en- 
gages to  put  a  person  down  at  a  given  place,  and  does  not  put 
him  down  there,  but  puts  him  down  somewhere  else,  it  must  be 
in  the  contemplation  of  everybody  that  the  passenger  put  down 
at  the  wrong  place  must  get  to  the  place  of  his  destination  some- 
how or  other.  If  there  are  means  of  conveyance  for  getting  there, 
he  may  take  those  means  and  make  the  company  responsible  for 
the  expense;  but  if  there  are  no  means,  I  take  it  to  be  law  that 
the  carrier  miLst  compensate  him  for  the  personal  inconvenience 
which  the  absence  of  those  means  has  necessitated.  That  flows 
out  of  the  breach  of  contract  so  immediately  that  the  damage 
resulting  must  be  admitted  to  be  fair  subject-matter  of  damages. 
But  in  this  case  the  wife's  cold  and  its  consequences  cannot 
stand  upon  the  same  footing  as  the  personal  inconvenience  aris- 
ing from  the  additional  distance  which  the  plaintiffs  had  to  go. 
It  is  an  effect  of  the  breach  of  contract  in  a  certain  sense,  but 
removed  one  stage ;  it  is  not  the  primary  but  the  secondary  con- 
sequence of  it :  and  if  in  such  a  case  the  party  recovered  damages 
by  reason  of  the  cold  caught  incidentally  on  that  foot  journey, 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     385 

it  would  be  necessary,  on  the  principle  so  applied,  to  hold  that  in 
two  cases  which  have  been  put  in  the  course  of  the  discussion, 
the  party  aggrieved  would  be  equally  entitled  to  recover.  And 
yet  the  moment  the  cases  are  stated,  everybody  would  agree  that, 
according  to  our  law,  the  parties  are  not  entitled  to  recover.  I 
put  the  case:  Suppose  in  walking  home,  on  a  dark  night,  the 
plaintiff  made  a  false  step  and  fell  and  broke  a  limb,  or  sustained 
bodily  injury  from  the  fall,  everybody  would  agree  that  that  is 
too  remote,  and  is  not  the  consequence  which,  reasonably  speak- 
ing, might  be  anticipated  to  follow  from  the  breach  of  contract. 
A  person  might  walk  a  hundred  times,  or  indeed  a  great  many 
more  times,  from  Esher  to  Hampton  without  falling  down  and 
breaking  a  limb ;  therefore  it  could  not  be  contended  that  that 
could  have  been  anticipated  as  the  likely  and  the  probable  con- 
sequence of  the  breach  of  contract.  Again,  the  party  is  entitled 
to  take  a  carriage  to  his  home.  Suppose  the  carriage  overturns 
or  breaks  down,  and  the  party  sustains  bodily  injury  from  either 
of  those  causes,  it  might  be  said :  "If  you  had  put  me  down  at 
my  proper  place  of  destination,  where  by  your  contract  you  en- 
gaged to  put  me  down,  I  should  not  have  had  to  walk  or  to  go 
from  Esher  to  Hampton  in  a  carriage,  and  I  should  not  have 
met  with  the  accident  in  the  walk  or  in  the  carriage. ' '  In  either 
of  those  eases  the  injury  is  too  remote,  and  I  think  that  is  the 
case  here ;  it  is  not  the  necessary  consequence,  it  is  not  even  the 
probable  consequence  of  a  person  being  put  down  at  an  im- 
proper place,  and  having  to  walk  home,  that  he  should  sustain 
either  personal  injury  or  catch  a  cold.  That  cannot  be  said  to 
be  within  the  contemplation  of  the  parties  so  as  to  entitle  the 
plaintiff  to  recover,  and  to  make  the  defendants  liable  to  pay 
damages  for  the  consequences.  Therefore,  as  regards  the  dam- 
ages awarded  in  respect  of  the  wife's  cold,  the  rule  must  be 
made  absolute  to  reduce  the  damages  by  that  amount. 

Blackburn,  J.  I  am  of  the  same  opinion.  I  think  the  rule 
should  be  made  absolute  to  reduce  the  damages  to  8  1.  beyond 
the  2  1.  paid  into  court,  but  should  not  be  made  absolute  any 
further.  The  action  is  in  reality  upon  a  contract ;  it  is  com- 
monly said  to  be  founded  upon  a  duty,  but  it  is  a  duty  arising 
out  of  a  contract.  It  is  a  contract  by  which  the  railway  com- 
pany had  undertaken  to  carry  four  persons  to  Hampton  Court, 
and  in  fact  that  contract  was  broken  when  they  landed  the 
passengers  at  Esher,  instead  of  Hampton  Court.     The  contract 


386  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

was  to  supply  a  conveyance  to  Hampton  Court,  and  it  was  not 
supplied.  Where  there  is  a  contract  to  supply  a  thing  and  it 
is  not  supplied,  the  damages  are  the  difference  between  that 
which  ought  to  have  been  supplied  and  that  which  you  have  to 
pay  foi-,  if  it  be  equally  good ;  or  if  the  thing  is  not  obtainable, 
the  damages  would  be  the  difference  between  the  thing  which  you 
ought  to  have  had  and  the  best  substitute  you  can  get  upon  the 
occasion  for  the  purpose.  *  *  *  Therefore  on  the  first  head 
of  damages  in  this  case,  I  do  not  see  that  we  can  cut  down  the 
damages  below  w^hat  the  jury  have  found. 

Then  comes  the  further  question,  whether  the  damages  for 
the  illness  of  the  wife  are  recoverable ;  I  think  they  are  not,  be- 
cause they  are  too  remote.  On  the  principle  of  what  is  too  re- 
mote, it  is  clear  enough  that  a  person  is  to  recover  in  the  case 
of  a  breach  of  contract  the  damages  directly  proceeding  from 
that  breach  of  contract  and  not  too  remotely.  Although  Lord 
Bacon  had,  long  ago,  referred  to  this  question  of  remoteness,  it 
has  been  left  in  very  great  vagueness  as  to  what  constitutes  the 
limitation ;  and  therefore  I  agree  with  what  my  Lord  has  said 
to-day,  that  you  make  it  a  little  more  definite  by  saying  such 
damages  are  recoverable  as  a  man  when  making  the  contract 
would  contemplate  would  flow  from  a  breach  of  it.  For  my  own 
part,  I  do  not  feel  that  I  can  go  further  than  that.  It  is  a  vague 
rule,  and  as  Bramwell,  B.,  said,  it  is  something  like  having  to 
draw  a  line  between  night  and  day;  there  is  a  great  duration  of 
twilight  when  it  is  neither  night  nor  day ;  but  on  the  question  now 
before  the  court,  though  you  cannot  draw  the  precise  line,  you  can 
say  on  which  side  of  the  line  the  case  is ;  I  do  not  see  the  analogy 
between  this  case  and  the  case  that  was  suggested,  where  a  railway 
company  made  a  contract  to  carry  a  passenger,  and  from  want 
of  reasonable  care  they  dashed  that  passenger  down  and  broke 
his  leg.  and  he  recovers  damages  from  them.  For  such  a  breach  as 
that,  the  most  direct,  immediate  consequence  is,  that  he  would  be  • 
lamed.  That  is  the  direct  consequence  of  such  a  breach  of  con- 
tract; but  though  here  the  contract  is  the  same,  a  contract  to 
carry  the  passenger,  the  nature  of  the  breach  is  quite  different ; 
the  nature  of  the  breach  is  simply  that  they  did  not  carry  the 
plaintiff  to  his  destination,  but  left  him  at  Esher.  To  illustrate 
this, — Suppose  you  expand  the  declaration,  and  say:  You,  the 
defendants,  contracted  to  carrv^  me  safely  to  Hampton  Court, 
you  negligently  upset  the  carriage  and  dashed  me  on  the  ground, 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     387 

whereby  I  became  ill  and  sick.  That  is  a  clear  and  immediate 
consequence.  The  other  case  is:  You  contracted  to  carry  me  to 
Hampton  Court,  you  went  to  Esher,  and  put  me  down  there,  by 
which  I  was  obliged  to  get  other  means  of  conveyance,  for  the 
purpose  of  getting  to  Hampton  Court ;  and  because  I  could  find 
no  fly  or  other  conveyance,  I  was  obliged,  as  the  only  means  of 
getting  to  Hampton,  to  walk  there,  and  because  it  was  a  cold  and 
wet  night,  I  caught  cold,  and  I  became  ill.  When  it  is  put  in 
that  way,  there  are  many  causes  or  stages  which  there  are  not  in 
the  other. 

With  regard  to  the  two  instances  my  Lord  put, — one,  of  the 
passenger,  when  walking  home  in  the  dark,  stumbling  and  break- 
ing his  leg ;  the  other,  of  his  hiring  a  carriage,  and  the  carriage 
breaking  down, — I  must  say  I  think  they  are  on  the  remote  side 
of  the  line,  and  further  from  it  than  the  present  case.  I  do  not 
think  it  is  any  one 's  fault  that  it  cannot  be  put  more  definitely ; 
I  think  it  must  be  left  as  vague  as  ever,  as  to  where  the  line  must 
be  drawn ;  but  I  think  in  each  case  the  court  must  say  whether 
it  is  on  the  one  side  or  the  other;  and  I  do  not  think  that  the 
question  of  remoteness  ought  ever  to  be  left  to  a  jury ;  that  would 
be  in  effect  to  say  that  there  shall  be  no  such  rule  as  to  damages 
being  too  remote;  and  it  would  be  highly  dangerous  if  it  was 
to  be  left  generally  to  the  jury  to  say  whether  the  damage  was 
too  remote  or  not. 

I  think,  therefore,  the  rule  ought  to  be  made  absolute  to  reduce 
the  damages  to  the  8  1.  beyond  the  2  1. 

Mellor,  J.,  and  Archibald,  J.,  write  saying  that  they  are  of 
the  same  opinion. 

Rule  accordingly. 


TURNER  V.  GREAT  NORTHTIRN  RY.  CO. 

Washington,  1896.     15  Wash.  213. 

The  plaintiff  and  his  wife  purchased  through  tickets  from  St. 
Paul,  Minn.,  to  Spokane,  Wash.,  over  the  defendant  company's 
road,  the  latter  then  knowing  that  through  transportation  was 
impossible  over  its  lines  owing  to  a  serious  break  in  its  roadbed, 
which  fact  it  fraudulently  and  negligently  concealed.  At  Havre, 
Mont.,  the  plaintiff  was  directed  to  leave  the  train,  to  proceed  to 
Helena,  and  then  to  take  the  road  of  the  Northern  Pacific  Rail- 
road Company,   which  company,  the   defendant  stated,  would 


388  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

honor  plaintiff's  ticket.  This  it,  however,  refused  to  do.  Plain- 
tiff was  eonipelled  to  pay  fare,  and  afterward  was  delayed  at 
JNIissoula  for  18  days  by  reason  of  floods.  A  verdict  was  ren- 
dered for  $750,  and  from  a  judgment  in  favor  of  plaintiff  this 
appeal  is  prosecuted. 

Anders,  j  *  *  *  in  answer  to  the  question,  "Now 
Colonel,  I  wish  you  would  go  on  and  state  to  the  jury  what,  if 
any,  anxiety,  worriment,  etc.,  you  suffered  on  account  of  your 
delay,  being  separated  from  your  baggage,  and  all  of  those  things 
that  are  proper  under  the  ruling  of  the  court;  in  conse(]uence 
of  this  delay,"  the  plaintiff  was  allowed,  notwithstanding  the 
defendant's  objection,  to  testify  that  he  was  greatly  worried, 
troubled,  and  annoyed  by  the  combination  of  circumstances  sur- 
rounding him  at  that  time,  among  which  were  that  he  had  to  pay 
out  more  money  than  he  had  contemplated  paying  out ;  that  the 
Northern  Pacific  Railroad  Company  would  not  board  him  at 
^lissoula,  as  they  did  their  passengers;  his  means  were  linrited, 
and  he  did  not  know  how  long  he  had  to  stay  there ;  that  he  could 
not  hear  from  home,  the  telegraph  line  being  broken  dowTi ;  that 
his  wife  was  taken  sick,  and  lay  in  bed  three  days,  in  consequence 
of  her  worriment,  and  that  he  could  not  make  her  comfortable 
under  the  circumstances. 

Damages  for  "worriment"  and  disappointment  resulting  from 
such  circumstances  are  too  remote  to  be  recovered  in  this  action. 
The  mental  anxiety  of  the  plaintiff  induced  by  the  sickness  of  his 
wife  and  his  inability  to  make  her  comfortable,  or  his  limited 
means,  or  his  inability  to  hear  from  home  owing  to  the  inter- 
ruption of  telegraphic  communication,  cannot  be  regarded  as  the 
proximate  result  of  the  alleged  wrongful  acts,  or  omissions  of 
the  defendant,  and  the  court  therefore  erred  in  permitting  this 
testimony  to  be  submitted  to  the  consideration  of  the  jury. 

The  court  also  erred,  and  for  .the  same  reason,  in  instructing 
the  jury  generally  that  the  plaintiff  was  entitled  to  recover,  for 
worry  and  mental  excitement  such  sum  as  would  fairly  and 
reasonably  compensate  him  therefor.  "Damages  will  not  be 
given  for  mere  inconvenience  and  annoyance,  such  as  are  felt 
at  every  disappointment  of  one's  expectations,  if  there  is  no  ac- 
tual physical  or  mental  injury."  1  Sedgwick  on  Damages  (8th 
Ed.)  §  42. 

And  hence  damages  cannot  be  recovered  for  anxiety  and  sus- 
pense of  mind  in  consequence  of  delay  caused  by  the  fault  of 


BREACH  OP  CONTRACT  TO  TRANSPORT  PASSENGERS.     389 

a  common  carrier.  Trigg  v.  Railway  Co.,  74  Mo.  147;  Hobbs 
V.  Railway  Co.,  L.  R.  10  Q.  B.  Ill ;  Hamlin  v.  Railway  Co.,  1 
Hurl.  &  N.  408 ;  Walsh  v.  Railway  Co.,  42  Wis.  23.     *     *     * 

Surely  no  court  could  say  that,  in  contemplation  of  law,  the 
mental  agitation  or  excitement  caused  by  being  delayed  on  a 
journey  is  of  a  different  character  from  that  produced  by  unex- 
pectedly having  to  pay  extra  fare  for  transportation.  The  men- 
tal sensation  in  each  case,  whether  it  be  called  excitement,  anx- 
iety, annoyance,  or  wony,  is  manifestly  the  result  of  disap- 
pointed hope  or  expectation  merely,  for  which,  as  we  have  seen, 
no  damages  can  be  awarded.  The  most  trustworthy  basis  of 
damages  was  not  adopted  in  the  trial  of  this  case.  There 
was  no  proof  whatever  of  what  the  plaintiff  actually  earned, 
as  an  attorney,  either  before  or  after  the  particular  time  in 
question.  *  *  *  ^^q  are  inclined  to  the  opinion  that  it  was 
hardly  proper  to  prove  what  the  time  of  practicing  attorneys 
was  worth,  as  that  would  constitute  no  fair  basis  of  damages, 
where  the  value  of  a  person 's  time  depends  so  much  upon  his  in- 
dividual exertions. 

The  judgment  must  be  reversed  and  the  cause  remanded  for  a 
new  trial. 

HoYT,  C.  J.,  and  Gordon.  J.,  concur,  Dunbar.  J.  dissents. 


COOLEY  V.  PENNSYLVANIA  R.  CO. 

New   York,   1903.     40  Misc.  239. 

GiEGERiCH,  J.  This  action  was  brought  to  recover  damages 
claimed  by  the  reason  of  delay  in  transporting  the  plaintiff  as  a 
passenger  on  defendant's  railroad.     *     *     * 

The  facts  in  the  case  are  practically  undisputed,  and,  as  far  as 
material,  are  as  follows :  On  or  about  the  10th  day  of  December, 
1899,  the  plaintiff,  in  the  city,  of  New  York,  purchased  a  ticket 
to  Philadelphia  and  return.  On  his  return  he  left  Philadelphia 
on  the  7:33  o'clock  a.  m.  train,  December  11th,  which  was  due  in 
New  York  at  9:30  o'clock  a.  m.,  as  appeared  by  the  time-tables 
published  by  the  defendant.  At  the  time  when  he  started  there 
had  been  a  wreck  upon  the  line  of  defendant's  road,  of  which  the 
plaintiff  was  not  informed.  Owing  to  the  wreck,  the  train  did 
not  reach  New  York  until  half-past  3  o'clock  in  the  afternoon. 
In  the  meanwhile,  a  case  in  which  he  was  attorney  for  the  plain- 
tiff had  been  called  in  the  City  Court  of  the  city  of  New  York  at 


390  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

10  o'clock  in  Iho  moniing-,  and,  owinp;  to  his  failure  to  appear, 
the  ease  had  been  dismissed,  although  he  had  telegraphed  to  his 
own  ot!ice  and  to  the  judge  before  whom  the  ease  was  to  be  tried 
that  he  could  not  be  there  on  time.  The  plaintiff,  having  his  re- 
turn ticket,  did  not  have  to  ])urehase  one,  and  before  starting 
from  Philadelphia  he  did  not  disclose  to  any  servant  or  officer 
of  the  defendant  his  profession  or  the  nature  of  his  business  on 
that  day.  He  testitied  that  he  told  the  conductor  when  on  the 
train  at  Trenton  that  he  had  a  court  engagement,  but  at  that  tim(i 
it  Avas  impossible  for  him  to  be  transported  to  New  York  in  time 
to  be  present  at  the  call  of  the  City  Court  calendar.  The  fact 
that  there  was  a  delay  of  several  hours  called  upon  the  defendant 
to  show,  if  it  could,  that  such  delay  was  the  result  of  inevitable 
accident  or  that  it  was  excusable.  This  it  did  not  do,  and  there- 
fore the  question  for  us  to  determine  is,  what  measure  of  dam- 
ages should  have  been  applied  to  the  case  ? 

It  is  well  established  that,  in  order  to  hold  the  carrier  for 
damages  beyond  those  which  accrue  upon  his  negligent  delay 
naturally  and  in  the  order  of  things,  he  must  be  informed  of  the 
special  circumstances  w^hich  make  promptness  on  his  part  im- 
portant to  the  passenger,  and  which  may  occasion  exceptional 
damages  as  the  result  of  his  delay — in  other  words,  that  both 
parties  to  the  contract  must  be  fully  informed  as  to  the  circum- 
stances and  the  reasons  why  it  is  important  to  the  passenger  to 
arrive  at  on  or  about  the  schedule  time.  De  Leon  v.  McKernan, 
25  Misc.  Rep.  182;  Hadley  v.  Baxendale,  9  Exch.  341;  North 
American  Transportation  &  Trading  Co.  v.  Morrison,  178  U.  S. 
262;  Booth  V.  Spuyten  Duyvil  Rolling  Mill  Co.,  60  N.  Y.  487; 
Hutchinson  on  Carriers,  §  773,  p.  920.  This  rule  would  exclude 
the  $20  paid  by  the  plaintiff  to  open  the  default,  even  if  the 
plaintiff  were  liable  for  the  same ;  but  an  attorney  is  not  liable 
for  costs  in  such  a  case,  and  if  he  chose  to  pay  them,  it  was  a 
voluntary  act  on  his  part. 

In  our  opinion,  the  only  damages  which  can  be  recovered  in 
this  case  are  compensatory,  merely,  and  such  as  would  naturally 
and  in  the  order  of  things  flow  from  the  delay ;  and  these,  under 
the  facts  presented  in  this  case,  would  be  the  value  of  his  time 
for  the  period  covered  by  the  delay,  which  is  to  be  measured,  not 
by  the  largest  sums  he  has  earned  for  such  time,  nor  by  the  small- 
est, but  by  an  average  of  what  he  has  earned  for  at  least  a  year 
immediately  preceding  the  time  of  the  occurrence.     "Walker  v. 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     391 

Erie  R.  Co.,  63  Barb.  260.  Now,  as  to  such  value,  the  only  evi- 
dence in  the  case  is  the  following  testimony  given  by  the  plain- 
tiff: 

' '  Q.  What  were  your  services  reasonably  worth  for  the  time  ? 
A.  Depending  on  the  kind  of  case  it  is — from  $50  to  $100  a  day. 
Q.  Do  you  consider  $75  a  reasonable  compensation  a  day? 
A.     I  do." 

This  clearly  does  not  have  reference  to  the  plaintiff's  average 
earnings  for  any  given  period  of  time,  but  is  a  mere  estimate  of 
what  he  might  have  charged  under  certain  circumstances,  "de- 
pending on  the  kind  of  case"  he  might  have  had,  and  is  not  a 
sufficient  basis  for  determining  the  value  of  such  time.  "We 
therefore  think  the  judgment  should  be  reversed,  and  a  new  trial 
ordered,  with  costs  to  the  appellant  to  abide  the  event. 

Judgment  reversed  and  new  trial  ordered,  with  costs  to  appel- 
lant to  abide  event. 

Freedman,  p.  J.,  concurs.    Gildersleeve,  J.,  takes  no  part. 


GILLESPIE  V.  BROOKLYN  HEIGHTS  R.  R.  CO. 

New  York,  1904.     178  N.  Y.  347. 

Appeal  from  Supreme  Court,  Appellate  Division,  Second 
Department. 

Action  by  Elizabeth  S.  Gillespie  against  the  Brooklyn  Heights 
Railroad  Company.  From  a  judgment  of  the  Appellate  Divi- 
sion affirming  a  judgment  for  defendant,  plaintiff  appeals. 

On  the  26th  of  December,  1900,  the  plaintiff,  who  was  a  prac- 
ticing physician,  boarded  one  of  the  defendant's  cars  at  the 
corner  of  Nostrand  avenue  and  Fulton  street  at  about  10 :20 
in  the  morning.  As  to  what  thereafter  occurred  the  plaintiff 
testified:  "I  know  who  the  conductor  was  on  that  car:  Con- 
ductor Wright.  He  came  to  collect  my  fare  just  a  few  minutes 
after  I  got  on  the  car.  I  gave  him  a  twenty-five  cent  piece,  and 
said  to  him,  'A  transfer,  please,  to  Reid  avenue.'  Just  at  that 
moment  a  lady  on  the  opposite  side  called  to  him.  He  crossed,  and 
he  went  to  punch  a  transfer,  and  I  thought  it  was  mine,  and  I 
said  to  him,  'Please  don't  do  that  until  I  speak  with  you.'  He 
paid  no  attention.  After  he  gave  the  lady  her  transfer,  I  said  to 
him :  '  Won 't  you  please  come  here  ?  I  wish  to  speak  to  you  about 
the  transfer?'  So  he  came  across  very  growly  and  roughly,  and 
wanted  to  know,  'What  is  the  matter  with  you?'    I  said,  'Won't 


392  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

you  please  tell  me — I  don't  know  inueh  about  those  streets  away 
up  here — whieh  would  be  the  nearest,  Keid  avenue  or  Sum- 
ner avenue,  to  Stuyvesant  avenue.'  lie  said,  'We  don't  have 
any  Reid  avenue  transfers;  we  transfer  at  Sumner  avenue.' 
'Well,'  I  said  then,  'I  thank  you;  please  give  me  a  transfer  for 
Sumner  avenue  and  my  change;'  and  he  actually  hollowed  at 
me,  'What  change?'  I  said,  'The  money  I  gave  you,  twenty- 
five  cents ;  and  1  want  my  change ; '  and  he  put  his  hands  in 
his  pocket,  and  he  pulled  out  a  whole  handful  of  pennies  or 
nickels.  He  said,  '  Do  you  see  any  twenty-live  cents  there  ? '  He 
said:  'It  is  the  likes  of  ye.  You  are  a  deadbeat.  You  are  a 
swindler.  I  know  the  likes  of  ye.'  lie  said,  'You  didn't  give 
me  twenty-live  cents. '  The  lady  that  sat  next  to  me  set  the  con- 
ductor right.  She  said  to  him,  'I  am  sure,  sir,  she  gave  you  a 
quarter  of  a  dollar;  I  saw  her  give  it  to  you;'  and  he  turned, 
'Well,  perhaps  you  are  a  friend  of  hers.'  Then  he  said  that 
deadbeats  like  me,  he  knew  that  every  day  they  were  traveling 
on  the  cars;  he  knew  the  swindlers  and  the  deadbeats.  'But  you 
can 't  deadbeat  me.  I  know  you.  You  belong  to  them ; '  and  he 
said  then,  'Why,  only  here  the  other  day  I  had  just  such  a 
woman  as  you  trying  to  deadbeat  me  out  of  money;'  and  I  said, 
'I  want  my  change,  and  I  don't  want  such  insolence.'  Then  he 
walked  back,  and  two  gentlemen  got  on  the  car,  and  he  called 
the  attention  of  those  gentlemen  to  me,  and  said,  pointing  to  me — 
I  went  to  the  door,  and  he  was  telling  them  how  I  was  trying  to 
swindle  him.  'But,'  he  said,  'I  know  them.  They  are  all  dead- 
beats. She  can't  beat  me.'  I  said  to  him,  'Look  here,  sir;  I 
know  President  Rossiter,  and  I  shall  make  a  complaint  of  you ; ' 
and  he  came  over  close  to  me.  He  said,  'Ah,  the  likes  of  you,' 
he  said.  'You  couldn't  make  a  complaint  to  President  Rossiter,' 
he  said.  'I  have  been  on  this  road  too  long  for  you  to  have  any 
authority  with  him;  no,  no.'  'Well,'  I  said,  'I  shall  tell  him,' 
and  I  went  back  and  sat  down."  The  plaintiff  further  and  in 
substance  testified  that  she  noticed  that  there  was  a  smell  of 
whiskey  in  the  conductor's  breath;  that  he  did  not  give  her  her 
change  at  all;  that  he  gave  her  no  transfer;  that  he  said  nothing 
except  merely  that  he  had  nothing  to  do  with  her,  and  that  "I 
was  a  deadbeat  and  a  swindler."  She  then  testified  as  to  her 
efforts  to  see  President  Rossiter ;  that  when  she  reached  his  office 
she  was  about  four  miles  from  home ;  that  she  walked  that  dis- 
tance because  she  had  no  money  with  which  to  pay  her  fare ;  that 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     393 

she  became  sick,  was  confined  to  the  bed  for  two  days,  and  as  to 
its  eifect  upon  her  business.  All  this  evidence  was  undisputed. 
At  the  close  of  the  plaintiff's  case  the  defendant  made  a  motion 
for  a  dismissal  of  the  complaint,  and  the  court  said :  ' '  The  allega- 
tion of  the  complaint  is  that  it  was  done  maliciously  by  the 
servant  of  the  corporation,  so  that  takes  it  out  of  the  action 
against  the  corporation  anyway,  so  far  as  the  slander  part  of  it 
is  concerned.  The  only  question  now  is  whether  she  is  entitled 
to  recover  the  amount  that  she  paid  for  the  fare."  The  plaintiff 
claimed  she  was  entitled  to  recover  more.  The  court  thereupon 
said:  "On  the  testimony  as  it  stands  they  [the  company]  did 
receive  it.  It  is  uncontradicted  now  that  they  did  receive  it.  I 
think  I  will  direct  a  verdict  for  the  twenty  cents  if  you  [refer- 
ring to  the  defendant's  counsel]  want  to."  The  plaintiff  ex- 
cepted to  the  direction  of  a  verdict,  and  asked  to  go  to  the  jury 
"upon  the  facts  in  the  case,  upon  the  wrong  and  the  wrongful 
detention  of  this  woman's  money,  and  the  suffering  occasioned  by 
it, ' '  and  the  court  directed  a  verdict  for  the  plaintiff  for  20  cents, 
and  held  that  that  was  the  extent  to  which  the  railroad  company 
was  liable,  and  that  "the  other  damages,  if  any  have  grown  out 
of  it,  are  not  the  proximate  result  of  the  act  of  the  conductor." 
The  verdict  was  directed  with  the  consent  of  the  defendant's 
counsel. 

Martin,  J.  The  principal  and  practically  the  only,  question 
involved  upon  this  appeal  is  whether  the  plaintiff  was  entitled  to 
recover  for  the  tort  or  breach  of  contract  proved  an  amount  in 
excess  of  the  sum  she  actually  overpaid  the  defendant's  con- 
ductor. Confessedly,  the  plaintiff  was  a  passenger  on  the  de- 
fendant's ear,  and  entitled  to  be  carried  over  its  road.  That  at 
the  time  of  this  occurrence  the  relation  of  carrier  and  passenger 
existed  between  the  defendant  and  the  plaintiff  is  not  denied. 
The  latter  gave  the  conductor  a  quarter  of  a  dollar  from  which 
to  take  her  fare.  He  received  it,  but  did  not  return  her  the  20 
cents  change  to  which  she  was  entitled.  She  subsequently  asked 
him  for  it,  when  he,  in  an  abusive  and  impudent  manner,  not 
only  refused  to  pay  it,  but  also  grossly  insulted  her  by  calling 
her  a  deadbeat  and  a  swindler,  and  by  the  use  of  other  insulting 
and  improper  language,  even  after  a  fellow  passenger  had  in- 
formed him  that  she  had  given  him  the  amount  she  claimed.  In 
this  case  there  was  obviously  a  breach  of  the  defendant's  con- 
tract and  of  its  duty  to  its  passenger.     It  was  its  duty  to  receive 


394  DAMAGES   IX    ACTIONS   ON    CONTRACTS. 

any  coin  or  bill  not  in  excess  of  the  amount  permitted  to  be 
tendered  for  fare  on  its  car  imdcr  its  rules  and  regulations,  and 
to  make  the  change,  and  return  it  to  the  plaintiff,  or  person 
tendering  the  money  for  the  fare.  That  certainly  must  have 
been  a  part  of  the  contract  entered  into  by  the  defendant,  and  the 
refusal  of  the  conductor  to  return  her  change  was  a  tortious  act 
upon  his  part,  performed  by  him  while  acting  in  the  line  of  his 
duty  as  the  defendant's  servant.  To  that  extent,  at  least,  the 
contract  between  the  parties  was  broken,  and  as  an  incident  to 
and  accompanying  that  breach  the  language  and  tortious  acts 
complained  of  Avere  employed  and  performed  by  the  defendant's 
conductor. 

This  brings  us  to  the  precise  question  whether,  in  an  action  to 
recover  damages  for  the  breach  of  that  contract  and  for  the  tor- 
tious acts  of  the  conductor  in  relation  thereto,  the  conduct  of  such 
employe  and  his  treatment  of  the  plaintiff  at  the  time  may  be 
considered  upon  the  question  of  damages,  and  in  aggravation 
thereof.  That  the  plaintiff  suffered  insult  and  indignity  at  the 
hands  of  the  conductor,  and  was  treated  disrespectfully  and  in- 
decorously by  him  under  such  circmnstances  as  to  occasion  mental 
suffering,  humiliation,  wounded  pride,  and  disgrace,  there  can 
be  little  doubt.  At  least  the  jury  might  have  so  found  upon  the 
evidence  before  them.  This  question  was  treated  on  the  argu- 
ment as  a  novel  one,  and  as  requiring  the  establishment  of  a  new 
principle  of  law  to  enable  the  plaintiff  to  recover  damages  in 
excess  of  the  amount  retained  by  the  defendant's  conductor  which 
rightfully  belonged  to  her.  In  that  we  think  counsel  were  at 
fault,  and  that  the  right  to  such  a  recovery  is  established  beyond 
question,  as  will  be  seen  by  the  authorities  which  we  shall  pres- 
ently consider.  The  consideration  of  this  general  question  in- 
volves two  propositions.  The  first  relates  to  the  duties  of  car- 
riers to  their  passengers,  and  the  second  to  the  rule  of  damages 
when  there  has  been  a  breach  of  such  duty.  The  relation  be- 
tween a  carrier  and  its  passenger  is  more  than  a  mere  contract 
relation,  as  it  may  exist  in  the  absence  of  any  contract  whatso- 
ever. Any  person  rightfully  on  the  cars  of  a  railroad  company 
is  entitled  to  protection  by  the  carrier,  and  any  breach  of  its 
duty  in  that  respect  is  in  the  nature  of  a  tort,  and  recovery  may 
be  had  in  an  action  of  tort  as  well  as  for  a  breach  of  the  eon- 
tract.  2  Sedgwick  on  Damages,  637.  In  considering  the  duties 
ol  carriers  to  their  passengers,  we  find  that  the  elementary  writ- 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     395 

ers  have  often  discussed  this  question,  and  that  it  has  frequently 
been  the  subject  of  judicial  consideration.  Thus,  in  Booth  on 
Street  Railways,  §  372,  it  is  said:  "The  contract  on  the  part  of 
the  company  is  to  safely  carry  its  passengers,  and  to  compen- 
sate them  for  all  unlawful  and  tortious  injuries  inflicted  by  its 
servants.  It  calls  for  safe  carriage,  for  safe  and  respectful  treat- 
ment from  the  carrier 's  servants,  and  for  immunity  from  assaults 
by  them,  or  by  other  persons,  if  it  can  be  prevented  by  them.  No 
matter  what  the  motive  is  which  incites  the  servant  of  the  carrier 
to  commit  an  improper  act  towards  the  passenger  during  the 
existence  of  the  relation,  the  master  is  liable  for  the  act  and  its 
natural  and  legitimate  consequences.  Hence  it  is  responsible 
for  the  insulting  conduct  of  its  servants,  which  stops  short  of 
actual  violence."  In  Hutchinson  on  Carriers,  §§  595,  596,  the 
rule  is  stated  as  follows:  "The  passenger  is  entitled  not  only  to 
every  precaution  which  can  be  used  by  the  carrier  for  his  per- 
sonal safety,  but  also  to  respectful  treatment  from  him  and  his 
servants.  From  the  moment  the  relation  commences,  as  has  been 
seen,  the  passenger  is,  in  a  great  measure,  under  the  protection 
of  the  carrier,  even  from  the  violent  conduct  of  other  passengers, 
or  of  strangers  who  may  be  temporarily  upon  his  conveyance. 
*  *  *  The  carrier's  obligation  is  to  carry  his  passenger  safely 
and  properly,  and  to  treat  him  respectfully;  and,  if  he  intrusts 
the  performance  of  this  duty  to  his  servants,  the  law  holds  him 
responsible  for  the  manner  in  which  they  execute  the  trust.  The 
law  seems  to  be  now  well  settled  that  the  carrier  is  obliged  to 
protect  his  passenger  from  violence  and  insult  from  whatever 
source  arising.  He  is  not  regarded  as  an  insurer  of  his  pas- 
senger's safety  against  every  possible  source  of  danger,  but  he 
is  bound  to  use  all  such  reasonable  precautions  as  human  judg- 
ment and  foresight  are  capable  of  to  make  his  passenger's  jour- 
ney safe  and  comfortable.  He  must  not  only  protect  his  pas- 
senger against  the  violence  and  insults  of  strangers  and  co-pas- 
sengers, but,  a  fortiori,  against  the  violence  and  insults  of  his 
own  servants.  If  this  duty  to  the  passenger  is  not  performed,  if 
this  protection  is  not  furnished,  but,  on  the  contrary,  the  pas- 
senger is  assaulted  and  insulted  through  the  negligence  or  wilful 
misconduct  of  the  carrier's  servant,  the  carrier  is  necessarily 
responsible.  And  it  seems  to  us  it  would  be  cause  of  profound 
regret  if  the  law  were  otherwise.  The  carrier  selects  his  omu 
servants,  and  can  discharge  them  when  he  pleases,  and  it  is  but 


39(i  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

reasonable  that  ho  should  bo  responsible  i'or  the  manner  in  which 
they  execute  their  trust."  In  Thompson  on  Negligence,  §  3186, 
the  learned  writer,  after  stating  the  foregoing  rule,  adds :  ' '  The 
carrier  is  liable  absolutely,  as  an  insurer,  for  the  protection  of 
the  passenger  against  assaults  and  insults  at  the  hands  of  his 
o\\'n  servants,  because  he  contracts  to  carry  the  passenger  safely 
and  to  give  him  decent  treatment  en  route.  Hence,  an  unlaw- 
ful assault  or  an  insult  to  a  passenger  by  his  servant  is  a  viola- 
tion of  his  contract  by  the  very  person  whom  he  has  employed  to 
carry  it  out.  The  intendment  of  the  law  is  that  he  contracts 
absolutely  to  protect  his  passenger  against  the  misconduct  of  his 
own  servants  whom  he  employs  to  execute  the  contract  of  car- 
riage. The  duty  of  the  carrier  to  protect  the  passenger  during 
the  transit  from  the  assaults  and  insults  of  his  own  servants 
being  a  duty  of  an  absolute  nature,  the  usual  distinctions  which 
attend  the  doctrine  of  respondeat  superior  cut  little  or  no  figure 
in  the  case."  Again,  in  Schouler  on  Bailments,  §  644,  it  is 
said :  ' '  Nor  is  it  only  good  treatment  from  fellow  passengers  and 
from  strangers  coming  upon  the  car,  vessel,  or  vehicle  that  each 
passenger  is  entitled  to,  but  he  should  be  well  treated  by  the 
passenger-carrier  himself,  and  all  whom  such  carrier  employs  in 
and  about  the  vehicle  in  the  course  of  the  journey.  If  the  gen- 
eral doctrine  of  master  and  servant  may  be  said  to  apply  here, 
it  applies  with  a  very  strong  bias  against  the  master,  even  where 
the  servant's  acts  appear  to  be  aggressive,  wanton,  malicious, 
and,  so  to  speak,  such  as  one's  strict  contract  of  service  or  agency 
does  not  readily  imply.  Such  is  the  general  construction,  so  long 
as  the  offensive  words  and  acts  of  a  conductor,  *  *  *  or  other 
such  servant  complained  of,  were  said  or  committed  in  the  usual 
line  of  duty,  while,  for  instance,  scrutinizing  tickets  and  determ- 
ining the  right  to  travel,  excluding  offenders  and  trespassers,  and 
enforcing,  or  pretending  to  enforce,  the  carrier's  rules  aboard 
the  vehicle;  and  this  whether  the  transportation  of  passengers 
be  by  land  or  water." 

Having  thus  considered  a  portion  of  the  elementary  authori- 
ties relating  to  this  question,  we  will  now  consider  a  few  of  the 
many  decided  cases  relating  to  the  same  subject.  In  Chamber- 
lain V.  Chandler,  3  Mason,  242,  245,  Fed.  Cas.  No.  2,575,  Judge 
Story,  who  delivered  the  opinion  of  the  court,  in  discussing  the 
duties,  relations,  and  responsibilities  which  arise  between  the 
carrier  and  passenger,  said :  "  In  respect  to  passengers,  the  case 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     397 

of  the  master  is  one  of  peculiar  responsibility  and  delicacy.  Their 
contract  with  him  is  not  for  mere  shiproom  and  personal  exist- 
ence on  board,  but  for  reasonable  food,  comforts,  necessaries,  and 
kindness.  It  is  a  stipulation,  not  for  toleration  merely,  but  for 
respectful  treatment,  for  that  decency  of  demeanor  which  con- 
stitutes the  charm  of  social  life,  for  that  attention  which  miti- 
gates evils  without  reluctance,  and  that  promptitude  which  ad- 
ministers aid  to  distress.  In  respect  to  females  it  proceeds  yet 
farther;  it  includes  an  implied  stipulation  against  general  ob- 
scenity, that  immodesty  of  approach  which  borders  on  lascivious- 
ness,  and  against  that  wanton  disregard  of  the  feelings  which 
aggravates  every  evil,  and  endeavors  by  the  excitement  of  terror 
and  cool  malignancy  of  conduct  to  inflict  torture  upon  susceptible 
minds.  *  *  *  It  is  intimated  that  all  these  acts,  though 
wrong  in  morals,  are  yet  acts  which  the  law  does  not  punish ;  that 
if  the  person  is  untouched,  if  the  acts  do  not  amount  to  an  assault 
and  battery,  they  are  not  to  be  redressed.  The  law  looks  on 
them  as  unworthy  of  its  cognizance.  The  master  is  at  liberty  to 
inflict  the  most  severe  mental  sufferings  in  the  most  tyrannical 
manner,  and  yet,  if  he  witholds  a  blow,  the  victim  may  be  crushed 
by  his  unkindness.  He  commits  nothing  within  the  reach  of 
civil  jurisprudence.  IMy  opinion  is  that  the  law  involves  no 
such  absurdity.  It  is  rational  and  just.  It  gives  compensation 
for  mental  sufferings  occasioned  by  acts  of  wanton  injustice, 
equally  whether  they  operate  by  way  of  direct  or  of  conse- 
quential injuries.  In  each  case  the  contract  of  the  passengers 
for  the  voyage  is,  in  substance,  violated ;  and  the  wrong  is  to  be 
redressed  as  a  cause  of  damage."'  In  Knox\dlle  Traction  Com- 
pany V.  Lane,  103  Tenn.  376,  it  was  held  that  an  electric  street 
railway  company  was  liable  in  damages  to  a  passenger  for  the 
injury  to  his  feelings  by  the  indecent  and  insulting  language  of 
its  employe,  upon  the  ground,  not  of  tort  or  negligence,  but  of 
breach  of  its  contract  that  obligates  the  carrier  not  only  to  trans- 
port the  passenger  but  to  guaranty  him  respectful  and  courteous 
treatment,  and  to  protect  him  from  violence  and  insult  from 
strangers  and  from  its  own  employes ;  that  as  to  the  latter,  the 
obligation  of  its  contract  is  absolute ;  and  that  it  selects  its  agents 
to  perform  its  contract,  and  the  carrier,  and  not  the  passenger, 
must  assume  the  responsibility  for  the  acts  and  conduct  of  such 
agents.  In  Cole  v.  Atlanta  &  West  Point  R.  R.  Co.,  102  Ga.  474, 
it  was  held  that  it  was  the  unquestionable  duty  of  a  railroad  com- 


398  DAJIAGES    IN    ACTIONS   ON    CONTRACTS. 

pany  to  protect  a  passenger  against  insult  or  injiay  from  its 
coudiietor,  and  that  the  unprovoked  use  by  a  conductor  to  a  pas- 
senger of  opprobrious  words  and  abusive  language  tending  to 
humiliate  the  passenger  or  subject  him  to  mortiiication  gives  to 
the  latter  a  right  of  action  against  the  company.  In  that  case 
it  was  said:  '"The  carrier's  liability  is  not  conlined  to  assaults 
committed  by  its  servants,  but  it  extends  also  to  insults,  threats, 
and  other  disrespectful  conduct."  In  Goddard  v.  Grand  Trunk 
R.  R.  Co.,  57  Me.  202,  it  was  held  that  a  common  carrier  of  pas- 
sengers is  responsible  for  the  misconduct  of  his  servant  towards 
a  passenger.  In  that  case  Walton,  J.,  delivering  the  opinion  of 
the  court,  said:  "The  carrier's  obligation  is  to  carry  his  pas- 
senger safely  and  properly,  and  to  treat  him  respectfully,  and, 
if  he  intrusts  the  performance  of  this  duty  to  his  servants,  the  law 
holds  him  responsible  for  the  manner  in  which  they  execute  the 
trust.  The  law  seems  to  be  now  well  settled  that  the  carrier  is 
obliged  to  protect  his  passenger  from  violence  and  insult,  from 
whatever  source  arising.  *  *  *  jje  must  not  only  protect 
his  passenger  against  the  violence  and  insults  of  strangers  and  co- 
passengers,  but,  a  fortiori,  against  the  violence  and  insults  of 
his  own  servants.  If  this  duty  to  the  passenger  is  not  performed, 
if  this  protection  is  not  furnished,  but,  on  the  contrary,  the  pas- 
senger is  assaulted  and  insulted,  through  the  negligence  or  the 
willful  misconduct  of  the  carrier's  servant,  the  carrier  is  neces- 
sarily responsible" — citing  Howe  v.  Newmarch,  12  Allen,  55; 
Moore  v.  Railroad,  4  Gray,  465 ;  Seymour  v.  Greenwood,  7  Hurl. 
&  Nor.  354 ;  Railroad  v.  Finney,  10  Wis.  388 ;  Railroad  v.  Van- 
diver,  42  Pa.  365;  Railroad  v.  Derby,  14  How.  (U.  S.)  468;  Rail- 
way V.  Hinds,  53  Pa.  512 ;  Flint  v.  Transportation  Co.,  34  Conn. 
554;  Landreaux  v.  Bell,  5  La.  [0.  G.]  275;  Railroad  v.  Blocher, 
27  Md.  277.  The  decision  in  Southern  Kansas  R.  R.  Co.  v.  Hins- 
dale, 38  Kan.  507,  was  to  the  effect  that  where  a  conductor,  in 
ejecting  a  pers<3n  from  a  train,  uses  insulting  or  abusive  lan- 
guage, such  person  may  recover  damages  therefor  on  account  of 
the  injury  to  his  feelings,  but  cannot,  in  an  action  for  damages 
for  his  expulsion,  also  receive  damages  because  the  words  used 
tended  to  bring  him  into  ignominy  and  disgrace.  So,  in  Craker 
V.  Chicago  &  N.  W.  R.  R.  Co.,  36  AVis.  657,  it  was  held  that  a 
railroad  company  is  bound  to  protect  female  passengers  on  its 
trains  from  all  indecent  approach  or  assault ;  and  where  a  con- 
ductor on  the  company's  train  makes  an  assault  the  company  is 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     399 

liable  for  compensator}^  damages.  In  Bryan  v.  Chicago,  R.  I. 
&  P.  R.  R.  Co.,  63  Iowa,  464,  it  was  also  held  that  an  action  by  a 
passenger  on  the  defendant's  road  would  lie  for  injuries  sus- 
tained from  insolent,  abusive,  and  offensive  words  spoken  to  her 
by  the  conductor.  In  McGinness  v.  Mo.  Pac.  Ry.  Co.,  21  ]\Io. 
App.  399,  the  decision  of  the  United  States  court  in  Chamber- 
lain v.  Chandler  was  followed,  and  the  discussion  of  the  court 
in  that  case  closely  followed  the  discussion  by  Judge  Story.  In 
Spolm  V.  Missouri  Pacific  Railway  Co.,  87  Mo.  74,  the  court  held 
that  the  company  was  liable  to  its  passengers  for  any  violence 
or  insult  from  others  while  the  relation  of  carrier  and  passenger 
existed.  See,  also,  ]\Ialecek  v.  Tower  Grove  &  Lafayette  R.  R. 
Co.,  57  Mo.  17 ;  Lou.  &  Nash.  R.  R.  Co.  v.  Ballard,  85  Ky.  307 ; 
Winnegar's  Administrator  v.  Cent.  Pass.  Ry.  Co.,  85  Ky.  547; 
Sherley  v.  Billings,  8  Bush,  147 ;  Eads  v.  Metropolitan  St.  Ry. 
Co.,  43  ]\[o.  App.  536;  Block  v.  Bannerman,  10  La.  Ann.  1;  and 
Coppin  V.  Braithwaite,  8  Jurist,  pt.  1,  875.  The  duties  arising 
between  a  carrier  and  passenger  have  been  several  times  dis- 
cussed in  this  state,  as  in  Stewart  v.  Brooklyn  &  Crosstown  R. 
R.  Co.,  90  N.  Y.  588,  590,  where  it  was  said:  "By  the  defendant's 
contract  with  the  plaintiff,  it  had  undertaken  to  carry  him  safely 
and  to  treat  him  respectfully ;  and  while  a  common  carrier  does 
not  imdertake  to  insure  against  injury  from  every  possible  dan- 
ger, he  does  undertake  to  protect  the  passenger  against  any  in- 
jury arising  from  the  negligence  or  willful  misconduct  of  its 
servants  while  engaged  in  performing  a  duty  which  the  carrier 
owes  to  the  passenger.  *  *  *  'The  carrier's  obligation  is  to 
carry  his  passenger  safely  and  properly,  and  to  treat  him  re- 
spectfully, and,  if  he  intrusts  this  duty  to  his  servants,  the  law 
holds  him  responsible  for  the  manner  in  which  they  execute  the 
trust.'  "  Tht  court  then  quoted  with  approval  the  decision  in 
Nieto  V.  Clark,  1  Cliff.  145,  149,  Fed.  Cas.  No.  10,262,  where  it 
was  said:  "In  respect  to  female  passengers,  the  contract  pro- 
ceeds yet  further,  and  includes  an  implied  stipulation  that  they 
shall  be  protected  against  obscene  conduct,  lascivious  behavior, 
and  every  immodest  and  libidinous  approach.  *  *  *  ^  com- 
mon carrier  undertakes  absolutely  to  protect  his  passengers 
against  the  misconduct  of  their  own  servants  engaged  in  execut- 
ing the  contract."  Subsequently,  in  Dwindle  v.  N.  Y.  C.  &  H. 
R.  R.  R.  Co.,  120  N.  Y.  117,  24,  the  same  doctrine  was  held,  and 
the  foregoing  portion  of  the  opinion  in  the  Stewart  Case  was 


•lOO  DAMAGES   IN    ACTIONS   ON    CONTRACTS. 

quoted  and  reaffirmed  by  this  court.  It  was  then  added :  "These 
and  numerous  other  eases  hokl  that,  no  matter  wliat  the  motive 
is  which  incites  the  servant  of  the  carrier  to  commit  an  imhiw- 
ful  or  improper  act  toward  the  passenger  during  the  existence  of 
the  rehition  of  carrier  and  passenger,  the  carrier  is  liable  for  the 
act  ami  its  natural  and  legitimate  consequences."  Again,  in 
Palmeri  v.  .Alanhattan  R.  Co.,  133  N.  Y.  261,  it  was  held  that 
the  corporation  is  liable  for  the  acts  of  injury  and  insult  by  an 
employee,  although  in  departure  from  the  authority  conferred 
or  implied,  if  they  occur  in  the  course  of  the  employment.  In 
that  case  the  employee  alleged  that  the  plaintiff  was  a  counter- 
feiter and  a  common  prostitute,  placed  his  hand  upon  her,  and 
detained  her  for  a  while,  but  let  her  go  without  having  her 
arrested.  The  action  was  to  recover  damages  for  imlawful  im- 
prisonment, accompanied  by  the  words  alleged  to  have  been 
spoken.  This  court  held  she  was  entitled  to  recover.  The  judge 
then  said:  "Though  injury  and  insult  are  acts  in  departure 
from  the  authority  conferred  or  implied,  nevertheless,  as  they 
occur  in  the  course  of  the  employment,  the  master  becomes  re- 
sponsible for  the  wrong  committed." 

The  foregoing  authorities  render  it  manifest  that  the  defend- 
ant was  not  only  liable  to  the  plaintiff  for  the  money  wrongfully 
retained  by  its  conductor,  but  also  for  any  injur^^  she  suffered 
from  the  insulting  and  abusive  language  and  treatment  received 
at  his  hands. 

This  brings  us  to  the  consideration  of  the  elements  of  damages 
in  such  a  case,  and  what  may  be  considered  in  determining  their 
amount.  Among  the  elements  of  compensatory  damages  for 
such  an  injury  are  the  humiliation  and  injury  to  her  feelings 
which  the  plaintiff  suffered  by  reason  of  the  insulting  and 
abusive  language  and  treatment  she  received,  not,  however,  in- 
cluding any  injury  to  her  character  resulting  therefrom.  She 
was  entitled  to  recover  only  such  compensatory  damages  as  she 
sustained  bj'  reason  of  the  humiliation  and  injury  to  her  feelings, 
not  including  punitive  or  exemplary  damages.  "Damages  given 
on  the  footing  of  humiliation,  mortification,  mental  suffering, 
etc.,  are  compensatory,  and  not  exemplary,  damages.  They  are 
given  because  of  the  suffering  to  which  the  passenger  has  been 
MTongfully  subjected  by  the  carrier.  The  quantum  of  this  suf- 
fering may  not.  and  generally  does  not,  depend  at  all  upon  the 
mental  condition  of  the  carrier's  servant,  whether  he  acted  hon- 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     401 

estly  or  dishonestly,  with  or  without  malice.    But,  whatever  view 
is  taken  of  this  question,  it  is  clear  that,  where  the  expulsion  is 
made  in  consequence  of  a  mistake  of  another  agent  of  the  car- 
rier— as   in   a   case   where   a   previous     conductor     erroneously 
punched  the  transfer  check  which  he  gave  to  the  passenger  so  as 
to  read  2  :40  p.  m.  instead  of  3  :40  p.  ni.,  and,  in  addition  to  this, 
the  expulsion  was  accompanied  by  insulting  remarks  made  to  the 
passenger  in  the  presence  of  others,  damages    may    be    given, 
founded  on  the  humiliation  and  injury  to  the  feelings  of  the  pas- 
senger."    Thompson  on  Negligence,  §  3288.     The  same  doctrine 
is  laid  down  in  Joj^ce  on  Damages,  §  354.    In  Hamilton  v.  Third 
Ave.  R.  R.  Co.,  53  N.  Y.  25,  where  a  passenger  was  ejected  by  the 
conductor,  who  honestly  supposed  the  fare  had  not  been  paid, 
and  no  unnecessary  force  was  used,  it  was  held  that  the  act  of  the 
defendant's  ser\'ant,   being  unlawful,   rendered   the   defendant 
liable  for  compensatory  damages,   including  compensation  for 
loss  of  time,  the  fare  upon  another  car,  and  a  suitable  recom- 
pense for  the  injury  done  to  the  plaintiff's  feelings.     In  Eddy  v. 
Syracuse  Rapid  Transit  R.  Co.,  50  App.  Div.  109,  it  was  held 
that,  where  the  plaintiff  entered  a  car  believing  that  his  transfer 
was  valid,  and  was  not  negligent  in  failing  to  discover  that  it 
had  been  punched  erroneously,  he  was  there  lawfully,  and  en- 
titled to  recover  compensatory  damages,  including  the  indignity, 
humiliation,  and  injury  to  his  feelings  by  the  remarks  of  the 
conductor  and  his  wrongful  ejection  from  the  car.     In  Miller 
V.  King,  84  Hun,  308,  310,  32  N.  Y.  Supp.  332,  it  was  held  that 
the  conductor  had  no  right  to  eject  the  plaintiff ;  that  his  action 
in  doing  so  was  unlawful,  and  that  the  plaintiff  was  entitled  to 
damages  for  the  indignity  and  humiliation  suffered  thereby.    See, 
also,  Sedgwick  on  Damages,  §  865.     In  Jacobs  v.  Third  Ave.  R. 
R.  Co.,  71  App.  Div.  199,  202,  it  was  held  that  the  plaintiff  was 
entitled  to  recover  compensatory  damages,  which  embraced  loss 
of  time,  the  amount  which  the  plaintiff  was  obliged  to  pay  for 
passage  upon  another  car,  and  injurj"^  done  to  his  feelings  by 
reason  of  the  indignity  which  he  wrongfully  suffered.     The  same 
doctrine  was  held  in  Ray  v.  Cortland  &  Homer  Traction  Co., 
19  App.  Div.  530.     See,  also,  Pullman's  Palace  Car  Co.  v.  King, 
99  Fed.  381.     In  Shepard  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.,  77 
Iowa,  54,  the  court  charged  the  jury:     "When  a  passenger  is 
wrongfully  compelled  to  leave  a  train   and   suffer  insult  and 
abuse,  the  law  does  not  exactly  measure  his  damages,  but  it  au- 

26 


402  DAMAGES   IN   ACTIONS   ON    CONTRACTS. 

thorizcs  the  jury  to  consider  the  injured  feelings  of  the  party, 
the  indignity  endured,  the  humiliation,  wounded  pride,  mental 
sutfering,  and  the  like,  and  to  allow  such  sum  as  the  jury  may 
say  is  right;"  and  it  was  held  that  his  instruction  was  not  sub- 
ject to  the  objection  that  it  authorized, an  allowance  of  exemplary 
damages,  because  damages  may  properly  be  allowed  for  mental 
suffering  caused  by  indignity  and  outrage,  and  such  damages 
are  compensatory,  and  not  exemplary.  In  Craker  v,  Chicago  & 
N.  W.  R.  R.  Co.,  36  Wis.  657,  it  was  held  that  in  actions  for  per- 
sonal torts  the  compensatory  damages  which  may  be  recovered 
of  the  principal  for  the  agent's  act  include  not  merely  the  plain- 
tiff's pecuniary  loss,  but  also  compensation  for  mental  suffering, 
and  that  in  awarding  compensatory  damages  in  such  cases  no 
distinction  is  to  be  made  between  other  forms  of  mental  suffering 
and  that  which  consists  in  a  sense  of  wrong  or  insult  arising  from 
an  act  really  or  apparently  dictated  by  a  spirit  of  willful  injus- 
tice, or  by  a  deliberate  intention  to  vex,  degrade,  or  insult.  In 
Cole  V.  Atlanta  &  West  Point  R.  R.  Co.,  102  Ga.  474,  it  was  held 
that,  even  where  there  was  no  actual  assault,  but  the  company 
has  failed  in  its  duty  to  protect  its  passenger  from  insult,  abuse, 
and  ill  treatment,  the  plaintiff  is  entitled  to  recover  damages  for 
the  pain  and  mortification  of  being  publicly  denounced  as  a  dead- 
beat,  and  in  that  case  it  was  said :  ' '  While  this  was  a  wanton  act 
of  commission  by  a  servant  of  the  company,  it  was  also  a  negli- 
gent omission  on  the  part  of  the  servants  to  perform  towards  the 
plaintiff  a  duty  imposed  by  law  upon  their  master."  Humilia- 
tion and  indignity  are  elements  of  actual  damages,  and  these 
may  arise  from  a  sense  of  injury  and  outraged  rights  in  being 
ejected  from  a  railroad  train  without  regard  to  the  manner  in 
which  the  ejection  was  effected,  though  only  done  through  mis- 
take. Louisville  &  Nashville  R.  R.  Co.  v.  Hine,  121  Ala.  234. 
Where  unnecessary  violence  was  used  in  ejecting  a  passenger 
from  a  train,  he  is  entitled  to  damages  for  the  direct  consequences 
of  the  wrong,  including  as  well  physical  pain  as  mental  suffering 
resulting  from  accompanying  insults,  if  any.  Texas  Pacific  R. 
R.  Co.  V.  James,  82  Tex.  306.  A  conductor  of  a  railroad  com- 
pany represents  the  company  in  the  discharge  of  his  functions, 
and  being  in  the  line  of  his  duty  in  collecting  the  fare  or  taking 
up  tickets,  the  corporation  is  liable  for  any  abuse  of  his  author- 
ity, whether  of  omission  or  commission.  In  that  case  the  court 
charged  that  "in  estimating  damages  they  might  take  into  con- 


BREACH  OF  CONTRACT  TO  TRANSPORT  PASSENGERS.     403 

sideration  the  indignity,  insult,  and  injury  to  plaintiff's  feelings 
by  being  publicly  expelled,"  and  it  was  held  proper.  S.  K.  R. 
R.  Co.  V.  Rice,  38  Kan.  398.  Damages  may  be  properly  allowed 
for  mental  sutt'ering  caused  by  indignity  and  outrage,  whether 
connected  with  physical  suffering  or  not;  and  such  damages  are 
compensatory,  and  not  exemplary.  Shepard  v.  Chicago,  R.  I. 
&  P.  R.  R.  Co.,  77  Iowa,  54.  Where  the  plaintiff,  holding  a  ticket, 
was  wrongfully  threatened  with  expulsion  from  the  cars,  charged 
with  attempting  to  ride  without  paying  therefor,  and  paid  his 
fare  rather  than  to  be  ejected,  it  was  held  that  he  was  entitled  to 
recover  damages  for  the  humiliation  suffered  and  indignity  done 
him  by  such  action  on  the  part  of  the  conductor.  Penn.  Co.  v. 
Bray,  125  Ind.  229.  Where  a  passenger  is  expelled  from  a  train, 
and  without  fault  on  his  part,  he  may  recover  more  than  nominal 
damages,  although  he  has  suffered  no  pecuniary  loss  or  received 
actual  injury  to  the  person  by  reason  of  such  expulsion ;  and  the 
jury,  in  estimating  the  damages,  may  consider  not  only  the  an- 
noyance, vexation,  delay,  and  risk  to  which  the  person  was  sub- 
jected, but  also  the  indignity  done  him  by  the  mere  fact  of  his 
expulsion.  Chicago  &  Alton  R.  R.  Co.  v.  Flagg,  43  111.  364.  A 
person  wrongfully  ejected  from  a  train  is  entitled  to  recover 
such  damages  as  he  may  have  sustained  by  the  delay  occasioned 
by  the  expulsion,  and  all  the  additional  expenses  necessarily  in- 
curred thereby,  as  well  as  reasonable  damages  for  the  indignity 
to  which  he  was  subjected  in  being  expelled  from  the  train.  Penn. 
R.  R.  Co.  V.  Connell,  127  111.  419.  Where  there  was  a  wrongful 
expulsion  of  a  passenger  from  the  car,  although  unaccompanied 
by  any  physical  force  or  violence,  it  is  actionable,  and  in  such  a 
case  the  sense  of  wrong  suffered  and  the  feeling  of  humiliation 
and  disgrace  engendered  is  an  actual  damage  for  which  the  in- 
jured party  may  recover  compensation,  such  damages  being  com- 
pensatory, and  not  exemplary.  Willson  v.  Northern  Pacific  R.  R. 
Co.,  5  Wash.  621.  See,  also,  G.  C.  &.  S.  F.  R.  R.  Co.  v.  Copeland, 
17  Tex.  Civ.  App.  55;  Railroad  Co.  v.  Goben,  15  Ind.  App.  123; 
Cooper  V.  Mullins,  30  Ga.  146 ;  Railroad  Co.  v.  Deloney,  65  Ark. 
177 ;  Railroad  Company  v.  Dickerson,  4  Kan,  App.  345. 

After  this  somewhat  extended  review  of  the  authorities  bear- 
ing upon  the  subject,  we  are  led  irresistibly  to  the  conclusion 
that  the  defendant  is  liable  for  the  insulting  and  abusive  treat- 
ment the  plaintiff  received  at  the  hands  of  its  servant,  that  she 
is  entitled  to  recover  compensatory  damages  for  the  humiliation 


404  DAMAGES    IN    ACTIONS    ON    CONTRACTS. 

and  injury  to  hor  foolings  oooasionod  llioroby,  and  that  the  trial 
court  erred  in  directing  a  verdict  for  the  phiintiff  for  20  cents 
only,  and  in  refusing  to  submit  the  case  to  the  jury. 

The  judgments  of  the  AppeUate  Division  and  trial  court  should 
be  reversed,  and  a  new  trial  granted,  with  costs  to  abide  the  event. 

Gray,  J.  (dissenting).  I  dissent,  because  I  think  it  is  extend- 
ing unduly  the  doctrine  of  a  common  carrier's  liability  in  making 
it  answerable  in  damages  for  the  slanderous  words  spoken  by  one 
of  its  agents. 

Bartlett,  Haight,  and  Citllen,  J.  J.,  concur  with  Martin, 
J.  Parker,  C.  J.,  and  O'Brien,  J.,  concur  with  Gray,  J. 

Judgments  reversed,  etc. 


5.     Contract  for  Board  and  Rooms. 
WILKINSON  V.  DA  VIES. 

New  York,   1894.     146   N.  Y.  25. 

Haight,  J.  This  action  was  brought  to  recover  for  board  and 
lodging  furnished  by  the  plaintiff  to  the  defendant's  intestate, 
Henry  E.  Davies.  It  appears  that  the  plaintiff  let  to  Davies 
rooms  on  the  second  floor  of  her  residence,  No.  34  West  Fifty- 
First  street,  in  the  city  of  New  York,  consisting  of  a  parlor,  two 
bedrooms,  and  connecting  bath,  for  the  occupancy  of  himself  and 
family,  consisting  of  a  wife  and  son,  from  the  5th  day  of  Novem- 
ber, 1890,  to  the  1st  day  of  June,  1891,  with  table  board,  for  the 
sum  of  $70  per  week,  with  no  deduction  in  case  of  absence ;  that 
Davies  entered  into  possession  of  the  premises  at  the  time  men- 
tioned, and  continued  until  Thanksgiving  Day,  at  which  time  he 
abandoned  the  premises  and  went  away.  The  premises  remained 
vacant  until  the  1st  of  January,  at  which  time  the  plaintiff  relet 
them  to  four  people,  for  $75  per  week.  Davies  paid  for  the  time 
that  he  occupied  the  premises,  and  no  longer.  A  verdict  was 
directed  in  favor  of  the  plaintiff  for  the  time  that  the  premises 
remained  vacant,  at  $70  per  week,  the  contract  price. 

The  appellant  contends  that  an  improper  measure  of  damages 
was  adopted,  and  that  all  that  the  plaintiff  could  properly  re- 
cover under  the  circumstances  were  the  profits  she  would  have 
made  had  Davies  carried  out  his  contract.    This  would,  doubtless. 


CONTRACT  FOR  BOARD  AND  ROOMS.  405 

be  the  rule  as  to  the  measure  of  damages  were  it  not  for  the  pro- 
visions of  the  contract  that  no  deduction  should  be  made  in  case 
of  absence.  Here  we  have  an  express  provision  fixing  the  term, 
the  amount  to  be  paid  per  week,  without  deduction,  etc.  Under 
such  a  contract,  we  think  the  price  agreed  upon  becomes  the 
proper  measure  of  damages.  In  this  connection  it  is  further  con- 
tended that  the  provision,  "with  no  deduction  in  case  of  ab- 
sence, ' '  should  be  construed  to  mean  that  there  should  be  no  de- 
duction .so  long  as  Davies  kept  his  agreement,  but  this  construc- 
tion would  permit  Davies  to  avoid  the  provisions  of  the  contract 
by  his  own  breach  thereof,  and  such  it  does  not  appear  to  us  was 
the  intention  of  the  parties.  But  suppose  we  should  so  construe 
it.  We  find  no  evidence  in  the  record  that  Davies  ever  termi- 
nated the  contract,  or  that  he  gave  notice  that  he  would  no  longer 
occupy  the  premises.  He  left  and  went  away,  it  is  true,  but  he 
might  have  returned  the  next  day,  the  next  week,  or  even  the 
next  month,  and  continued  his  occupancy  of  the  premises;  and 
the  plaintiff  in  the  meantime  was  required  to  keep  his  rooms 
ready  for  him.  Under  such  circumstances,  it  would  appear  to  be 
unjust  to  deprive  the  plaintiff  of  the  benefit  of  her  contract. 

It  further  appears  that  upon  the  trial  the  plaintiff  offered  to 
show,  her  profits  from  the  people  that  occupied  the  premises  after 
the  1st  of  January,  and  as  to  whether  they  were  greater  or  less 
than  that  which  she  would  have  derived  from  Davies  had  he 
continued  to  occupy  them.  This  was  objected  to  by  the  defend- 
ant, without  stating  any  grounds  for  the  objection,  and  the  same 
was  sustained.  She  further  attempted  to  show  what  it  would 
have  cost  her  per  week  to  provide  table  board  for  Davies  and  his 
family.  This  was  also  objected  to  by  the  defendant,  and  the  evi- 
dence was  excluded.  Had  this  evidence  been  received,  it  might 
have  appeared  that  the  plaintiff's  profits  from  the  four  boarders 
after  the  1st  of  January  were  the  same  as  they  would  have  been 
had  Davies  and  his  family  continued  to  occupy  the  premises,  and 
that  the  planitiff's  expenses  in  providing  table  board  for  Davies 
and  his  family  were  $15  or  $20  per  week,  for  which  a  deduction 
might  have  been  made  from  the  contract  price  of  $70  per  week. 
But  the  defendant  interposed  an  objection  to  this  evidence,  and 
caused  it  to  be  excluded.  After  so  excluding  it,  we  think  he  is 
in  no  position  to  insist  that  the  plaintiff's  recovery  be  limited  to 
her  profits.  As  we  have  seen,  no  ground  was  stated  for  the  6b- 
jections  to  the  evidence.    The  complaint  was  in  due  form  to  re- 


406  DAMAGES    IN    ACTIONS   ON    CONTRACTS. 

cover  for  boanl  and  lodging.  If,  upon  the  trial,  the  plaintiflf 
couseuted  to  forego  her  claim  to  the  contract  price  of  $70  per 
week,  without  deduction  in  ease  of  absence,  and  permit  a  deduc- 
tion therefrom  of  her  costs  for  table  board,  the  defendant  ought 
not  to  complain,  or  be  permitted  to  defeat  her  right  to  recover, 
because  the  complaint  did  not  demand  that  particular  measure 
of  relief.  The  judgment  should  be  affirmed,  with  costs. 
All  concur. 

Judgment  affirmed. 


VI.     DAMAGES  IN  ACTIONS  FOR  WRONGS. 
1.    Negligence. 
RICHMOND  GAS  CO.  v.  BAKER. 

Indiana,  1897.     146  Ind.  600. 

The  plaintiff  brought  this  action  to  recover  damages  for  per- 
sonal injuries  caused  by  an  explosion  of  artificial  gas  in  her 
home,  caused  by  the  negligence  of  the  defendant  company.  A 
verdict  of  $4,600  was  recovered. 

Howard,  J.  *  *  *  Upon  the  subject  of  damages  the  court 
gave  to  the  jury  two  instructions,  the  first  of  which  is  admitted 
to  be  correct,  and  the  second  of  which  is  complained  of  by  ap- 
pellants as  being  erroneous.    The  two  instructions  are  as  follows : 

"No.  15.  If  you  find  a  verdict  for  the  plaintiff,  you  should 
award  her  a  sum  sufficient  to  fairly  compensate  her  for  all  dam- 
ages, if  any,  that  it  is  shown,  by  a  fair  preponderance  of  the 
evidence,  she  has  sustained.  In  estimating  such  damages,  you 
should  consider  the  nature  and  extent  of  her  physical  injuries,  if 
any,  whether  permanent  or  otherwise ;  the  effect  produced  there- 
by, and  the  probable  effect  that  such  injuries  will  directly  pro- 
duce, if  any,  upon  her  general  health,  and  all  physical  pain  and 
suffering  occasioned  thereby;  expenses  incurred  for  medical  at- 
tention, if  any,  shown  by  the  evidence.  And  if  you  find  from  the 
evidence  that  she  has  sustained  any  permanent  disability,  having 
considered  the  nature  of  the  same,  you  may  award  her  such 
prospective  damages  on  account  thereof  as  in  your  opinion  the 
evidence  may  warrant  you  in  believing  sne  will  sustain,  if  any, 
as  the  direct  result  thereof  in  the  future.  And  you  have  the 
right,  in  fixing  her  damages,  to  consider  her  present  age,  and  the 
probable  duration  of  her  life. 

"No.  16.  If,  as  a  direct  result  of  the  injuries,  if  any,  received 
by  the  plaintiff,  her  expectancy  of  life  has  been  shortened,  this 
circumstance  may  be  taken  into  consideration  by  the  jury, 
should  they  find  a  verdict  in  her  favor,  in  estimating  the  dam- 

407 


408  DAMAGES    IN    ACTIONS    KOK    WKONG.S. 

ages,  if  any,  that  they  may  award  to  her ;  and  on  this  point  the 
jury  may  consider  all  facts,  proved  by  a  fair  preponderance  of 
the  evidence,  as  to  the  plaintiff's  physical  condition,  health, 
vigor,  activity,  and  the  daily  work  done  by  her,  prior  to  the  said 
explosion. ' ' 

The  first  charge  above  given  is  full  and  complete,  covering 
every  element  of  damage  suggested  by  the  evidence,  unless  it 
should  be  damages  for  the  shortening  of  life,  as  referred  to  in  the 
second  charge.  It  is  as  to  this  question  that  counsel  differ. 
Counsel  for  appellant  contend  that  instruction  No.  16  is  errone- 
ous, for  the  reason  that  this  is  a  common-law  action,  and  the 
conniion  law  does  not  admit  of  compensation  in  money  for  the 
taking  of  human  life,  or  the  shortening  of  its  duration.  *  *  * 
None  of  the  cases  cited  by  the  appellee,  as  we  believe,  sustain 
the  contention  of  counsel.  In  general  these  cases  reach  to  this 
that  in  an  action  for  injury  by  the  wrong  of  another  the  actual 
condition  of  the  injured  person,  as  caused  by  the  accident, 
may  be  considered  for  the  purpose  of  determining  the  amount  of 
damages,  present  and  prospective,  which  should  be  awarded. 
And,  if  the  condition  of  the  injured  person  is  such  that  a  shorten- 
ing of  life  may  be  apprehended,  this  may  be  considered,  in  deter- 
mining the  extent  of  the  injury,  the  consequent  disability  to 
make  a  living,  and  the  bodily  and  mental  suffering  which  will  re- 
sult. This,  however,  falls  far  short  of  authorizing  damages  for  the. 
loss  or  shortening  of  life  itself.  The  value  of  human  life  cannot, 
as  adjudged  by  the  common  law,  be  measured  in  money.  It  is, 
besides,  inconceivable  that  one  could  thus  be  compensated  for  the 
loss  or  shortening  of  his  own  life.  And,  if  any  one  else  could 
maintain  an  action  for  the  death  of  the  injured  person,  it  must 
be  because  the  person  bringing  such  action  would  be  able  to  show 
pecuniary  loss  or  damage  to  himself  by  reason  of  the  death  of 
such  other  person.  Of  that  nature  are  various  stautory  actions 
authorized  to  be  brought  by,  or  for  the  benefit  of,  persons  re-^ 

garded  as  having  a  pecuniary  interest  in  the  lives  of  others. 
*     *     * 

The  judgment  is  reversed,  with  instructions  to  grant  a  new 
trial. 


NEGLIGENCE.  409 

HUBBARD  V.  N.  Y.,  N.  H.  &  H.  R.  CO. 

Connecticut,  1898.     70  Conn.  563. 

Action  to  recover  damages  for  destruction  of  an  ice  house  by 
fire  communicated  by  defendant's  locomotive  engine. 

Andrews,  C.  J.  There  is  error  in  the  plaintiff's  appeal.  In 
any  case  where  it  is  established  that  a  party  is  entitled  to  recover 
damages  for  an  injury  done  to  his  property  without  malice,  the 
quantum  of  damages  is  to  be  computed  as  of  the  day  the  injury 
was  done.  In  this  case,  it  being  conceded  by  the  default  that  the 
plaintiff  was  entitled  to  have  some  amount  of  damages,  the  only 
question  on  which  the  court  could  decide  was,  how  much?  In 
respect  to  the  ice  this  question  could  be  answered  by  ascertaining 
the  number  of  tons  there  were  in  the  houses  on  the  day  the  fire 
took  place,  and  its  market  price  on  that  day.  The  court  found 
the  price  to  be,  on  the  day  of  the  fire,  80  cents  per  ton.  But,  in 
ascertaining  the  number  of  tons  for  which  the  plaintiff  is  to  be 
paid,  the  court,  instead  of  taking  the  number  of  tons  then  in  the 
houses,  has  taken  only  the  number  of  tons  which  it  estimated 
would  remain  on  hand  at  the  end  of  the  next  summer.  This  is 
error.  The  plaintiff  is  entitled  to  be  paid  for  all  the  ice  then  in 
the  ice  houses, — less  what  was  saved,  if  any, — at  its  then  mar- 
ket price.  Parrott  v.  Railroad  Co.,  47  Conn.  575 ;  Regan  v.  Rail- 
road Co.,  60  Conn.  143 ;  Hurd  v.  Hubbell,  26  Conn.  389 ;  Cook  v. 
Loomis,  Id.  483 ;  Oviatt  v.  Pond,  29  Conn.  479 ;  2  Sedg.  ^leas. 
Dam.  368.  The  defendant,  having  destroyed  the  plaintiff's 
property  on  a  certain  day,  cannot  justly  be  exempted  from  pay- 
ment by  alleging  or  even  showing  that,  if  it  had  not  destroyed 
the  property,  the  plaintiff  subsequently  would  have  lost  it  in 
some  other  way.     *     *     * 

There  is  error  on  the  plaintiff's  appeal,  and  a  new  trial  is 
granted.  There  is  also  error  in  the  order  expunging  the  mo- 
tion filed  'My  the  defendant.  The  order  is  reversed.  The  motion 
should  be  restored  to,  and  be  made  a  part  of,  the  files  of  the  case. 
The  other  judges  concurred. 


DONAHUE  V.  KEYSTONE  GAS  CO. 

New  York,  1904.    90  App.  Div.  386. 

Stover,  J.    This  is  an  action  brought  to  recover  damages  for 
injury  to  premises  of  plaintiff  through  the  destruction  of  orna- 


•Ill)  DAMAGES   IN    ACTIONS   FOR    WRONGS. 

mental  shade  trees  in  front  of  his  premises  on  the  west  side  of 
Union  street  in  tlie  eity  of  Olean,  by  reason  of  leakage  of  gas 
from  the  mains  of  defendant,  which  were  laid  in  the  street  in 
front  of  plaintiff's  premises,  and  near  the  trees  which  were 
destroyed.     *     *     * 

Some  question  has  been  made  as  to  the  rule  of  damages  which 
was  adopted  in  this  case,  but  we  think  the  correct  rule  was  stated 
by  the  trial  judge,  viz.,  the  difference  between  the  value  of  the 
property  with  the  growing  trees  and  its  value  with  the  trees  re- 
moved. It  is  the  value  of  the  right  of  which  the  plaintiff  has  been 
deprived,  namely,  the  enjoyment  of  the  premises  with  the  trees, 
and  to  the  extent  that  he  has  been  deprived  he  is  entitled  to  re- 
cover. If  the  value  of  his  property  has  been  depreciated  by  the 
wTongful  act  of  the  defendant  he  is  entitled  to  recover  to  the  ex- 
tent that  it  has  been  depreciated. 

The  rule  of  damages  has  been  laid  down  in  many  adjudicated 
cases  that  where  property  has  been  interfered  with  and  has  depre- 
ciated in  value  and  without  the  destruction  of  the  fee,  the  owner 
is  entitled  to  recover  the  difference  in  the  value  of  the  premises 
before  and  after  the  interference. 

Reference  has  been  made  to  the  case  of  Halleran  v.  Bell  Tele- 
phone Co.  (64  App.  Div.  41),  but  we  do  not  deem  the  doctrine 
of  that  case  inconsistent  with  the  views  above  expressed.  The 
basis  of  that  decision  was  the  failure  of  evidence  showing  any  in- 
terference with  the  enjoyment  of  the  abutter's  premises,  and  the 
opinion  being  based  upon  the  fact  that  his  right  was  not,  to  any 
extent,  interfered  with,  the  finding  of  fact  there  being  "That 
the  telephone  poles  do  not  interfere  in  any  degree  with  any  right 
which  the  plaintiff  has  as  an  abutting  owner." 

We  find  no  error  and  the  judgment  and  order  should  be 
affirmed. 

All  concur. 

Affirmed  in  181  New  York  317. 


KRONOLD  V.  CITY  OF  NEW  YORK. 

New  York,  190G.     186  N.  Y,  40. 

Werner.  J.  This  action  was  brought  to  recover  damages  for 
personal  injuries  sustained  by  the  plaintiff  and  alleged  to  have 
been  caused  by  the  negligent  failure  of  the  defendant  to  keep  in 
proper  repair  a  crosswalk  at  the  intersection  of  Elm  and  Walker 


NEGLIGENCE.  411 

streets  in  the  borough  of  Manhattan.  For  the  purposes  of  this 
discussion  we  may  assume,  although  we  do  not  decide,  that  the 
defendant's  alleged  negligence  and  the  plaintiff's  freedom  from 
contributory  negligence  were  sufficiently  established  to  present 
questions  of  fact  to  be  disposed  of  by  a  jury,  and  we  shall  con- 
fine our  discussion  to  the  single  question  v/hether  the  learned 
trial  judge  properly  refused  to  submit  to  the  jury  the  plaintiff's 
.alleged  loss  of  earnings  or  income  as  an  element  of  the  damages 
which  should  be  awarded  to  him  if  he  is  entitled  to  a  verdict. 

At  the  close  of  the  evidence  the  learned  trial  judge  announced 
that  he  would  not  submit  to  the  jury  the  plaintiff 's  claim  for  loss 
of  income,  because  it  appeared  from  his  own  testimony  that  he 
had  $1,000  of  capital  invested  in  his  business,  and  there  was  no 
evidence  to  show  how  much  of  his  income  had  been  derived  from 
his  invested  capital  and  how  much  from  his  personal  efforts. 
When  this  ruling  had  been  made,  plaintiff's  counsel  asked  per- 
mission to  put  the  plaintiff  on  the  stand  for  the  purpose  of  in- 
terrogating him  as  to  the  reasonable  value  of  his  services,  or 
what  compensation  similar  services  would  command.  This  re- 
quest was  refused,  and  plaintiff 's  counsel  took  an  exception.  The 
case  was  then  submitted  to  the  jury  under  a  charge  in  which 
the  income  or  earnings  of  the  plaintiff  from  his  personal  efforts 
was  distinctly  excluded  from  consideration  as  an  element  of  any 
damages  which  might  be  awarded  to  him.  At  the  conclusion  of 
the  main  charge  plaintiff's  counsel  requested  the  court  to  instruct 
the  jury  that  it  was  for  them  to  consider  "the  nature  of  the  busi- 
ness in  which  the  plaintiff  was  engaged,  its  extent,  and  the  par- 
ticular part  therein  transacted  by  him,"  and  the  court  replied: 
' '  I  charge  that,  with  the  statement  that  you  are  not  to  take  into 
consideration  his  earnings  as  testified  to  by  him,  for  the  rea- 
son that  he  stated  that  he  had  capital  invested. ' '  To  this  modifi- 
cation of  his  request  the  plaintiff's  counsel  excepted,  and  later 
he  excepted  generally  to  that  portion  of  the  charge  in  which  the 
jury  were  instructed  to  disregard  the  testimony  of  the  plaintiff 
as  to  his  earnings  in  his  business.  These  exceptions,  when  con- 
sidered in  the  light  of  the  evidence,  are  sufficiently  definite,  we 
think,  to  present  for  our  review  the  question  whether  the  rul- 
ings of  the  court  above  adverted  to  present  legal  error  or  not, 
and  a  brief  synopsis  of  the  plaintiff's  evidence  on  this  subject 
will  serve  to  fix  the  point  of  view  from  which  that  question 
should  be  considered. 


412  DAMAGES    IN    ACTIONS    FOR    WRONGS. 

Prior  to  the  aeeidont  the  plaintiff  had  been  engaged  in  the 
business  of  selling  Swiss  embroideries.  He  took  orders  from 
shirt  waist  manufacturers,  Vantine  and  others  who  dealt  in  such 
articles.  These  sales  were  made  from  designs  or  drawings  pro- 
cured from  sample  embroideries.  No  considerable  stock  of  these 
embroideries  seems  to  have  been  carried  by  the  plaintiff,  and 
the  capital  which  he  had  invested  in  his  business  was  approxi- 
mately $1,000.  His  office  expenses,  which  included  rent  and  the 
wages  of  an  office  boy,  did  not  exceed  $600  a  year.  His  net  in- 
come was  about  $3,000  a  year,  and  it  is  fairly  to  be  inferred 
from  his  testimony  that  this  was  derived  chiefly  from  his  per- 
sonal efforts  as  a  canvasser  or  salesman,  for  he  stated:  "I  really 
made  my  living  only  with  my  legs  and  maybe  a  little  head  also, 
but  most  my  legs.  Of  course,  I  have  been  laid  down ;  then  I  had 
to  stop.  I  did  not  employ  any  salesmen  or  drummers  or  any- 
think  like  that.  I  was  myself  a  salesman  and  a  drummer ;  out  of 
towTi  sometimes."  When  we  add  to  this  brief,  but  comprehen- 
sive, statement  the  suggestion  that  the  amount  of  the  plain- 
tiff's income  as  compared  with  the  so-called  capital  invested  is, 
of  itself,  an  almost  conclusive  argument  against  the  theory  that 
the  plaintiff  was  engaged  in  a  business  which  yielded  profits  from 
capital  invested,  it  will  readily  be  seen  that  this  case  should  be 
classed  as  one  involving  the  investment  of  an  insignificant  capital 
as  a  mere  incident  or  vehicle  to  the  performance  of  services 
almost,  if  not  quite,  purely  personal  in  their  nature.  We  so  re- 
gard the  case  on  principle,  but  this  view  is  also  well  sustained  by 
authority.  In  Pill  v.  Brooklyn  Heights  R.  R.  Co.,  6  Misc.  Rep. 
267,  affirmed  148  N.  Y.  747,  where  the  plaintiff  was  a  custom 
corset  maker  who  maintained  a  workshop  and  employed  two  girls 
to  help  her,  it  was  held  competent  to  prove  loss  of  earnings  re- 
sulting from  the  injuries  on  account  of  which  the  suit  was 
brought.  In  Ehrgott  v.  Mayor,  etc.,  of  New  York,  96  N.  Y.  264, 
also  an  action  to  recover  damages  for  personal  injuries,  the  plain- 
tiff was  a  book  canvasser  and  was  permitted  to  show  his  earnings 
prior  to  his  injuries.  There  the  court,  speaking  through  the  late 
Earl,  J.,  illustrated  the  plaintiff's  position  by  likening  it,  so  far 
as  personal  earnings  were  concerned,  to  the  occupations  of  the 
lawyer,  the  physician,  and  the  dentist,  whose  earnings  are  the 
result  of  their  professional  skill  without  capital  invested.  The 
lawyer  has  to  have  books,  and,  if  he  is  busy  enough,  he  employs 
clerks  to  assist  him.    The  physician  puts  money  into  instruments, 


NEGLIGENCE.  413 

books,  and  medicines.  The  dentist  invests  in  gold  leaf,  artificial 
teeth,  and  tools.  And  yet  their  incomes,  which,  to  some  extent, 
at  least,  are  the  product  of  such  investments  and  expenditures, 
are  classified  as  personal  earnings,  the  loss  of  which  must  be 
considered  as  an  element  of  damages  in  actions  for  personal  in- 
juries. To  the  same  effect  are  Simonin  v.  N.  Y.,  L.  E.  &  AV.  R.  R. 
Co.,  36  Hun,  214,  where  the  plaintiff  was  a  teacher  of  French ; 
Nash  v.  Sharpe,  19  Hun,  365,  where  the  plaintiff  was  a  dentist ; 
Lynch  v.  Brooklyn  City  R.  R.  Co.  (Sup.)  5  N.  Y.  Supp.  311, 
affirmed  123  N.  Y.  657,  the  case  of  a  midwife ;  Thomas  v.  Union 
Ry.  Co.,  18  App.  Div.  185,  where  the  plaintiff  performed  services 
as  ganger  for  a  copartnership  of  which  lie  was  a  member; 
Waldie  v.  Brookh'n  Heights  R.  R.  Co.,  78  App.  Div.  557,  the  case 
of  a  licensed  pilot,  and  numerous  other  eases  involving  a  variety 
of  occupations,  in  which  the  element  of  personal  earnings  has 
been  held  to  predominate  over  a  small  and  purely  incidental  or 
supplemental  investment  of  capital. 

The  cases  above  cited,  as  well  as  the  case  at  bar,  are  clearly  dis- 
tinguishable, we  think,  from  Masterson  v.  Village  of  Mt.  Vernon, 
58  N.  Y.  391,  Marks  v.  Long  Island  R.  R.  Co.,  14  Daly,  61,  Boston 
&  Albany  R.  R.  Co.  v.  O'Reilly,  158  U.  S.  334,  and  other 
cases  relied  upon  by  counsel  for  the  respondent  and  the 
courts  below,  because  these  latter  decisions  are  all  based  upon 
facts  which  disclose  such  a  preponderance  of  the  business  ele- 
ment over  the  personal  equation,  or  such  an  admixture  of  the 
two,  that  the  question  of  personal  earnings  could  not  be  safely  or 
properly  segregated  from  returns  upon  capital  invested,  in  con- 
sidering the  damages  to  which  the  several  plaintiffs  claimed  to 
be  entitled. 

In  the  case  at  bar  there  was  not  only  evidence  which  tended 
properly  to  show  that  the  plaintiff  had  sustained  damages 
through  loss  of  personal  services,  but  competent  evidence  bearing 
upon  the  same  subject  was  excluded,  and  we  think  the  refusal  of 
the  learned  trial  court  to  submit  to  the  jury  the  former,  as  well 
as  its  ruling  excluding  the  latter,  constitutes  legal  error,  which 
entitles  the  plaintiff  to  a  new  trial.  In  this  view  of  the  case  we 
deem  it  unnecessary  to  discuss  other  questions  that  may  not  bo 
again  presented. 

The  judgment  below  should  be  reversed,  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 


414  DAMAGES    IN    ACTIONS    FOR    WRONGS. 

CuLLEN,  C.  J.,  and  Vann,  Willard  Bartlett,  IIiscock,  and 
Chase,  J  J.,  concur.    O'Brien,  J.,  absent. 

Judgment  reversed,  etc. 


BONDY  V.  N.  Y.  CITY  R.  R.  CO. 

New  York,  1907.     107  N.  Y.  Supp.  151. 

Erlanger,  J.  A  car  operated  by  the  defendant  collided  with 
the  plaintiff's  automobile,  and  this  action  was  brought  to  re- 
cover the  damages  sustained  by  reason  of  the  collision.  Upon 
the  question  of  the  negligence  of  the  defendant  and  freedom  from 
negligence  of  the  plaintiff  there  was  a  conflict  of  evidence.  The 
court  below  found  in  favor  of  the  plaintiff.  The  appellant  urges 
that  the  judgment  is  against  the  weight  of  evidence.  An  exam- 
ination of  the  record  does  not  support  such  contention.  The 
judgment  was  rendered  for  the  sum  of  $500,  the  extreme  limit 
for  which  the  court  had  jurisdiction.  The  items  of  damage 
proven  were  $148  for  repairs  to  the  machine  and  the  sum  of 
$69.70  for  a  new  tire.  The  difference  between  the  total  of  these 
two  items  and  the  amount  of  the  judgment  is  for  the  usable  or 
rental  value  of  the  automobile,  which  a  witness  testified  was 
$200  per  week  for  a  period  of  three  weeks  while  the  same  was 
being  repaired.  The  plaintiff  testified  that  he  was  the  owner  of 
the  machine,  and  that  every  time  it  was  taken  out  it  was  used  for 
' '  healthy  purposes  and  pleasure. ' '  The  proof  as  to  rental  value 
was  objected  to,  and  a  motion  was  made  to  strike  it  out  as  irrele- 
vant, immaterial,  and  not  the  proper  measure  of  damage,  which 
motion  was  denied. 

It  is  urged  upon  this  appeal  that  such  damages  are  not  legally 
recoverable  upon  the  facts  established  in  this  case.  That  the  use 
of  an  automobile  may,  upon  being  shown  to  have  been  used  for 
the  purpose  of  business  or  as  a  source  of  profit,  have  a  marketable 
value,  or  a  value  capable  of  being  estimated  without  indulging 
in  mere  conjecture,  is  undoubted;  but  nothing  of  the  kind  was 
proved  in  the  case  at  bar.  The  plaintiff,  so  far  as  appears,  did 
not  incur  any  expense  in  hiring  a  substitute  for  the  three  weeks 
his  machine  was  in  the  repair  shop;  nor  is  there  any  evidence 
that  it  was  a  source  of  profit  or  income  to  him.  The  evidence 
as  to  the  rental  value  was  limited  to  this  particular  machine, 
and  it  was  not  sho^vn  to  be  an  "article  in  constant  and  daily 
use,  whose  usable  value,  being  known  and  readily  ascertained, 


NEGLIGENCE.  415 

constitutes  a  proper  element  of  damages."  Volkmar  v.  Third 
Ave.  R.  R.  Co.,  28  Misc.  Rep.  141,  58  N.  Y.  Supp.  1021,  None  of 
the  cases  cited  by  respondent  upholds  his  contention.  In  those 
cases  the  actual  reasonable  outlay  for  the  rent  of  articles  in 
lieu  of  the  injured  articles  was  shown,  as,  for  example,  in  Well- 
man  V.  Minor,  19  Misc.  Rep.  644,  44  N.  Y.  Supp.  417,  the  plain- 
tiff proved  the  amount  paid  for  a  carriage  in  his  business  while 
his  damaged  one  was  undergoing  repairs,  and  in  Moore  v.  Met. 
St.  Ry.Co.,  84  App.  Div.  613,  82  N.  Y.  Supp.  778,  it  M^as  estab- 
lished that  the  wagon  injured  was  used  in  plaintiff's  business. 
The  circumstances  disclosed  by  the  testimony  in  the  case  at  bar 
are  somewhat  similar  to  those  in  Foley  v.  42d  St.,  etc.,  Ry.  Co., 
52  Misc.  Rep.  183,  101  N.  Y.  Supp.  780,  where  this  court  held 
the  plaintiff  was  not  entitled  to  recover  for  alleged  damages  up- 
on such  proof. 

Judgment  reversed,  and  new  trial  ordered,  with  costs  to  ap- 
pellant to  abide  the  event,  unless  plaintiff  will  stipulate  within 
five  days  to  reduce  the  judgment  to  $217.70  and  appropriate 
costs  in  the  court  below,  in  which  event  the  judgment,  as  so 
modified,  will  be  affirmed,  without  costs  of  this  appeal. 

All  concur. 

"Where  personal  injuries  result  proximately  from  negligence  or  other 
tort,  the  wrongdoer  is  liable  for  the  damages  actually  sustained,  al- 
though they  are  increased  by  a  tendency  to  disease  on  the  part  of  the 
person  injured."  McNamara  v.  Village  of  Clintonville,  62  Wis.  207. 
So  a  judgment  of  $5,000  was  sustained  against  a  city  for  injuries  to 
plaintiff  from  a  defective  sidewalk,  although  plaintiff's  physician  did 
not  employ  up-to-date  remedies.     SellecU  v.  Janesville,  100  Wis.  157. 

For  a  case  where  act  of  God,  an  extraordinary  flood,  cooperates  with 
negligence  to  produce  injury,  see  Helbling  v.  Cemetery  Co.,  201 
Pa.  171. 

Where  a  widowed  mother  sues  for  the  loss  of  services  of  her 
minor  daughter  the  question  is  "practically  a  business  and  commercial 
question  only,  and  the  elements  of  affection  and  sentiment  have  no 
place  therein."  A  judgment  for  $9,.500  was  set  aside  as  excessive. 
McGarr  v.  Worsted  Mills,  24  R.  T.  447. 

There  can  be  no  recovery  for  shock  and  fright  caused  by  negligent 
explosion  of  dynamite  in  a  highway  so  that  plaintiff's  husband  died 
in   two  weeks.     Huston  v.  -Borough   of  Freemansburgh,   212   Pa.   548. 

"Where  a  tort  has  been  committed,  and  injury  may  reasonably  be 
anticipated,  the  wrongdoer  is  liable  for  the  proximate  results  of  that 
injury,  although  the  consequences  are  more  serious  than  they  would 
have  been,  had  the  injured  person  been  in  perfect  health."  Watson, 
Damages,  Sec.  195.     Ptoss.  v.  G.  N.  Ry.,  101  Minn.  122. 


416  DAMAGES    IN    ACTIONS    I-X)K    WRONGS. 

Daniases  in  oaso  ol'  iio;;li.i;oii('o  can  lie  awarded  lor  nursing,  medi- 
cine, and  doctor's  bills.  Jolmson  v.  St.  Taui  &  W.  Coal  Co.,  131 
Wis.  tJ27. 

For  rule  as  to  mcasnio  of  dania.i;os  in  an  action  against  an  attorney 
at  law  for  negligence,  see  Vooth  v.  MclOaclien,  ISl  N.  Y.  28. 

AVliere  plaintiffs  Imilding  was  injured  by  water  leaking  from  a 
canal  owing  to  the  negligence  of  the  State,  claimant  may  recover  his 
expenses  of  restoration  and  loss  of  rental  during  the  period  of  repairs. 
Slavin  V.  State  of  N.  Y..  152  N.  Y.  45;  Connor  v.  State  of  New  Yorlv, 
ir)2  i\.  Y.  41). 

Where  property  was  injured  by  coal  dust  the  measure  of  damages 
is  the  cost  of  restoration.  If  the  cost  exceeds  the  value,  in  that  event 
the  value  is  the  measure  of  damages;  besides  this  the  actual  loss  in 
rentals  can  be  recovered.     Harvey  v.  Susquehanna  Coal  Co.,  201  Pa.  (53. 

See,  for  the  rule  of  damages  in  cases  of  jtersonal  injuries  through 
negligence.  Sullivan  v.  Boston  El.  R.  K.  71  N.  E.  Rep.  90;  Savage  v. 
Chicago  R.  Co.,  23S  111.  392;  Yerkes  v.  N.  P.  R.  R.,  112  Wis.  184; 
L.  and  N.  R.  R.  v.  Mount.  123  Ken.  593;  Platz  v.  MeKean,  178  Pa.  601; 
Brooks  v.  Rochester  Railway  Co.,  156  N.  Y.  244 ;  Wiueberg  v.  Du  Bois, 
209  Pa.  430. 


(1)     Actions  Againut  Common  Carriers. 
DENNY  V.  NEW  YORK  CENTRAL  RAILROAD. 

Massachusetts,  1859.    13  Gray,  481. 

Action  of  tort,  for  damages  to  wool,  delivered  to  defendant 
as  a  common  carrier,  to  be  transported  from  the  Suspension 
Bridge  at  Niagara  Falls  to  Albany. 

Merrick,  J.  This  action  is  brought  to  recover  compensation 
for  damages  alleged  to  have  been  sustained  by  the  plaintiff  in 
consequence  of  an  injury  to  a  quantity  of  his  wool  delivered  to 
the  defendants  to  be  transported  for  him  from  Suspension  Bridge 
to  Albany.  It  appears  from  the  report  that  the  wool,  directed 
to  Boston,  was  received  by  them  at  the  former,  and  carried  to  the 
latter  place,  and  was  there  safely  deposited  in  their  freight  depot. 
But  it  was  not  transported  seasonably  nor  with  reasonable 
despatch.  By  their  failure  to  exercise  the  degree  of  care  and 
diligence  required  of  them  by  law,  it  was  detained  six  days  at 
Syracuse,  and  consequently  arrived  at  Albany  so  many  days  later 
than  it  should  regularly  have  been  there.  Whilst  it  was  lying  in 
the  defendant's  freight  depot  in  that  city,  it  was  submerged  by 
a  sudden  and  violent  flood  in  the  Hudson  River.  This  rise  of  the 
water  caused  the  alleged  injury  to  the  wool. 

Upon  the  evidence  adduced  by  the  parties  at  the  trial,  three 


NEGLIGENCE.  41 7 

questions  of  fact  were  submitted  to  the  determination  of  the  jury. 
It  is  necessary  now  to  advert  only  to  the  first  of  those  questions ; 
for  the  finding  of  the  jury  in  relation  to  the  second  was  in  favor 
of  the  defendants,  and  the  verdict  in  relation  to  the  third  has  on 
their  motion  been  already  set  aside  as  having  been  rendered 
against  the  weight  of  evidence  in  the  case. 

In  looking  at  the  terms  and  language  in  which  the  action  of 
the  jury  in  reference  to  the  first  of  these  questions  is  expressed, 
it  w^ould  perhaps,  at  first  sight,  seem  that  they  had  passed  upon 
and  determined  the  precise  point  in  issue  between  the  parties, 
namely,  whether  the  wool  was  injured  by  reason  of  an  omission 
on  the  part  of  the  defendants  to  exercise  the  care  and  diligence 
in  the  transportation  of  the  wool,  which  the  law  required  of  them 
as  common  carriers.  If  this  were  so,  it  would  have  been  a  final 
and  conclusive  determination.  But  upon  a  closer  scrutiny  of  the 
statements  in  the  report,  it  appears  that  the  jury,  by  their  answer 
to  the  question  submitted  to  them,  intended  only  to  affirm,  that 
the  defendants  failed  to  exercise  due  care  and  diligence  in  the 
prompt  and  seasonable  transportation  of  the  wool,  and  that  by 
reason  of  this  failure  and  the  consequent  detention  of  the  wool 
at  Syracuse,  it  was  injured  by  the  rise  of  water  in  the  Hudson, 
and  thereb}^  sustained  damage  to  which  it  would  not  have  been 
exposed  if  it  had  arrived  at  Albany  as  soon  as  it  should  have 
done,  because  in  that  event  it  would  have  been  taken  away  from, 
the  defendants'  freight  depot,  and  carried  forward  to  Boston 
before  the  occurrence  of  the  flood.  And  it  was  upon  this  ground 
that  the  verdict  was  rendered  for  the  plaintiff.  This  was  so  con- 
sidered by  both  parties  in  their  arguments  upon  the  questions  of 
law  arising  upon  the  report. 

It  is  therefore  now  to  be  determined  by  the  court,  whether  the 
defendants  are,  by  reason  and  in  consequence  of  their  negligence 
in  the  prompt  and  seasonable  transportation  of  the  wool,  re- 
sponsible for  the  injury  which  it  sustained  after  it  was  safely  de- 
posited in  their  depot  at  Albany.  And  we  think  it  is  very  plain 
that,  upon  the  well-settled  principles  of  law  applicable  to  the  sub- 
ject, they  are  not. 

It  is  said  to  be  an  ancient  and  universal  rule  resting  upon 
obvious  reason  and  justice,  that  a  wrongdoer  shall  be  held  re- 
sponsible only  for  the  proximate  and  not  for  the  remote  con- 
sequences of  his  actions.  2  Parsons  on  Con.  456.  The  rule  is  not 
limited  to  cases  in  which  special  damages  arise ;  but  is  applicable 

27 


ilS  DAMAGES   IN    ACTIONS   FOK    WRONGS. 

to  every  case  in  wkich  damage  results  from  a  contract  violated  or 
an  injurious  act  committed.  2  Greenl.  Ev.  §256.  2  Parsons  on 
Con.  457.  And  the  liabilities  of  eoiunion  carriers,  like  persons  in 
other  occupations  and  pursuits,  are  regulated  and  governed  by 
it.  Story  on  Bailments,  586.  Angell  on  Carriers,  201.  Morrison 
V.  Davis,  20  Penn.  State  R.  171. 

In  the  last  named  case,  it  is  said  that  there  is  nothing  in  the 
policy  of  the  law  relating  to  common  carriers,  that  calls  for  any 
ditTerent  rule,  as  to  consequential  damages,  to  be  applied  to  them. 
In  that  case  may  be  found  not  only  a  clear  and  satisfactory  state- 
ment of  the  law  upon  the  subject,  but  a  significant  illustration  of 
the  rule  which  the  decision  recognizes  and  alarms.  It  was  an 
action  against  the  defendants,  as  common  carriers  upon  the  Penn- 
sylvania Canal.  It  appeared  that  their  canal  boat,  in  which  the 
plaintiff's  goods  were  carried,  was  wrecked  below  Piper's  Dam, 
by  reason  of  an  extraordinary  flood ;  that  the  boat  started  on  its 
voyage  with  a  lame  horse,  and  by  reason  thereof  great  delay  was 
occasioned  in  the  transportation  of  the  goods;  and  that,  had  it 
not  been  for  this,  the  boat  would  have  passed  the  point  where  the 
accident  occurred,  before  the  flood  came,  and  would  have  ar- 
rived in  time  and  safety  at  its  destination.  The  plaintiff  insisted 
that,  inasmuch  as  the  negligence  of  the  defendants  in  using  a 
lame  horse  for  the  voyage  occasioned  the  loss,  they  were  therefore 
liable  for  it.  But  the  court,  assuming  that  the  flood  was  the 
proximate  cause  of  the  disaster,  held,  that  the  lameness  of  the 
horse,  by  reason  of  which  the  boat,  in  consequence  of  his  inability 
thereby  to  carry  it  forward  with  the  usual  and  ordinary  speed, 
was  exposed  to  the  influence  and  dangers  of  the  flood,  was  too 
remote  to  make  the  defendants  responsible  for  the  goods  which 
were  lost  in  the  wreck.  It  was  only,  in  connection  with  other 
incidents,  a  cause  of  the  final,  direct,  and  proximate  cause  by 
which  the  damages  sought  to  be  recovered  were  immediately  oc- 
casioned. 

There  is  so  great  a  resemblance  between  the  circumstances 
upon  which  the  determination  in  that  case  was  made,  and 
those  upon  which  the  question  under  consideration  in  this  arises, 
that  the  decision  in  both  ought  to  be  the  same.  In  this  case 
the  defendants  failed  to  exercise  due  care  and  diligence,  in  not 
being  possessed  of  a  sufficient  number  of  efficient  working  engines 
to  transport  the  plaintiff's  wool  with  the  usual  ordinary  and 
reasonable  speed.    The  consequence  of  this  failure  on  their  part 


NEGLIGENCE.  419 

was  that  the  wool  was  detained  six  days  at  Syracuse.  This  was 
the  full  and  entire  effect  of  their  negligence,  and  for  this  they 
are  clearly  responsible.  But  in  all  that  occurred  afterwards 
there  was  no  failure  in  the  performance  of  their  duty.  There 
was  no  delay  and  no  negligence  in  any  part  of  the  transporta- 
tion between  Syracuse  and  Albany,  and  upon  reaching  the  latter 
place  the  wool  was  safely  and  properly  stored  in  their  freight 
depot.  It  was  their  duty  to  make  this  disposition  of  it.  They 
had  then  reached  the  terminus  of  their  road ;  the  carriage  of  the 
goods  was  then  complete ;  and  the  dutj^  only  remained  of  making 
delivery.  The  deposit  of  the  wool  in  the  depot  was  the  only  de- 
livery which  they  were  required  to  make ;  and  having  made  that, 
their  liabilities  as  carriers  thenceforward  ceased.  It  was  there 
to  be  received  by  the  o\Mier,  or  taken  up  by  the  proprietors  of  the 
railroad  next  in  course  of  the  route  to  Boston.  Norway  Plains 
Co.  V.  Boston  &  Maine  Railroad,  1  Gray,  263.  Nutting  v.  Con- 
necticut River  Railroad,  1  Gray,  502.  The  rise  of  waters  in  the 
Hudson,  which  did  the  mischief  to  the  wool,  occurred  at  a  period 
subsequent  to  this,  and  consequently  was  the  direct  and  proxi- 
mate cause  to  which  that  mischief  is  to  be  attributed.  The 
negligence  of  the  defendants  was  remote ;  it  had  ceased  to  operate 
as  an  active,  efficient,  and  prevailing  cause  as  soon  as  the  wool 
had  been  carried  on  beyond  Syracuse,  and  cannot  therefore  sub- 
ject them  to  responsibility  for  an  injury  to  the  plaintiff's  prop- 
erty, resulting  from  a  subsequent  inevitable  accident  which  was 
the  proximate  cause  by  which  it  was  produced.  It  is  to  the  latter 
only  to  which  the  loss  sustained  by  him  is  attributable. 

It  follows  from  these  considerations,  that  the  verdict  in  the 
plaintiff's  behalf  must  be  set  aside,  and  a  new  trial  be  had;  in 
which  he  will  recover  such  damages  as  he  proves  were  the  direct 
consequence  of  the  negligence  of  which  the  defendants  may  be 
shown  to  have  been  guilty. 

New  trial  ordered. 


GREEN-WHEELER  SHOE  CO.  v.  CHICAGO,  R.  I.  &  P.  Ry. 

CO. 

Iowa,  1906.    mo  ToAva,  123. 

Action  to  recover  the  value  of  two  parcels  of  goods  delivered 
by  plaintiff  to  defendant  at  Ft.  Dodge,  Iowa,  one  parcel  to  go  to 
Booneville,  Islo.,  and  the  other  to  Chanute,  Kan.,  one  of  which  it 


420  DAMAGES   IN    ACTIONS   FOR    WRONGS. 

is  alleged  was  lost  and  the  other  damaged  by  defendant's  negli- 
gouee.  The  ease  was  tried  on  an  agreed  statement  oi'  i'acts  and 
judgment  was  rendered  for  defendant.     Plaintiff  appeals. 

McClain,  C.  J.  In  the  agreed  statement  on  which  the  ease 
was  tried  without  other  evidence  being  introduced,  it  is  stipu- 
lated that  the  defendant  was  guilty  of  negligent  delay  in  the  for- 
warding of  the  goods  of  plaintiff  from  Ft.  Dodge  to  Kansas  City, 
where  they  were  lost  or  injured  on  JMay  30,  1903,  by  a  flood  which 
was  so  unusual  and  extraordinary  as  to  constitute  an  act  of  God, 
and  that  if  there  had  been  no  such  negligent  delay  the  goods 
would  not  have  been  caught  in  the  flood  referred  to  or  damaged 
thereby. 

We  have  presented  for  our  consideration,  therefore,  the  simple 
question  whether  a  carrier  who  by  a  negligent  delay  in  transport- 
ing goods  has  subjected  them,  in  the  course  of  transportation,  to 
a  peril  which  has  caused  their  damage  or  destruction,  and  for  the 
consequence  of  which  the  carrier  would  not  have  been  liable  had 
there  been  no  negligent  delay  intervening,  is  liable  for  the  loss. 

On  this  question  there  is  a  well-recognized  conflict  in  the 
authorities.  In  several  well-considered  cases  decided  by  courts 
of  high  authority  it  was  decided,  while  the  question  was  still  new, 
that  the  negligent  delay  of  the  carrier  in  transportation  could  not 
be  regarded  as  the  proximate  cause  of  an  ultimate  loss  by  a  cas- 
ualty which  in  itself  constituted  an  act  of  God,  as  that  term  is 
used  in  defining  the  carrier 's  exemption  from  liability,  although 
had  the  goods  been  transported  with  reasonable  diligence  they 
would  not  have  been  subjected  to  such  casualty,  and  these  cases 
are  very  similar  to  the  one  before  us  inasmuch  as  the  loss  in  each 
instance  was  due  to  the  goods  being  overtaken  by  an  un- 
precedented flood  for  the  consequence  of  which  the  carrier  would 
not  be  responsible.  Morrison  v.  Davis,  20  Pa.  171 ;  Denny  v.  New 
York  Cent.  R.  Co.,  13  Gray  (Mass.)  481 ;  Railroad  Co.  v.  Reeves, 
10  WaU.  176;  Daniels  v.  Ballantine,  23  Ohio  St.  532;  Hunt  v. 
Missouri,  K.  &  T.  R.  Co.  (Tex.  Civ.  App.)  74  S.  W.  69;  Gleeson 
V.  Virginia  IMidland  R.  Co.,  5  Mackey  (D.  C.)  356.  These  cases 
are  predicated  upon  the  view  that  if  the  carrier  could  not  reason- 
ably hav£  foreseen  or  anticipated  that  the  goods  would  be  over- 
taken by  such  a  casualty  as  a  natural  and  probable  result  of  the 
delay,  then  the  negligent  delay  was  not  the  proximate  cause  of  the 
loss,  and  should  be  disregarded  in  determining  the  liability  for 
such  loss.      A  similar  course  of  reasoning  has  been  applied  in 


NEGLIGENCE.  421 

other  eases,  where  the  loss  has  been  due  immediately  to  some 
cause  such  as  accidental  fire  involving  no  negligence  on  the  part 
of  the  carrier  and  within  a  valid  exception  in  the  bill  of  lading, 
but  the  goods  have  been  brought  within  the  peril  stipulated 
against  by  negligent  delay  in  transportation.  Hoadley  v.  North- 
ern Transp.  Co.,  115  Mass.  304;  Yazoo  &  M.  V.  R.  Co.  v.  Millsaps, 
76  ]\Iiss.  855;  General  Fire  Extinguisher  Co.  v.  Carolina  &  N. 
W.  E.  Co.,  137  N.  C.  278.  For  similar  reasons  it  has  been  held 
that  loss  of  or  injury  to  the  goods  by  reason  of  their  inherent 
nature,  as  by  freezing  or  the  like,  will  not  render  the  carrier 
liable,  even  after  negligent  delay  in  transportation,  if  such  cas- 
ualty could  not  have  been  foreseen  or  anticipated  as  the  natural 
and  probable  consequence  of  such  delay.  Michigan  Cent.  R.  Co. 
V.  Burrows,  83  Mich.  6 ;  Herring  v.  Chesapeake  &  W.  R.  Co.,  101 
Va.  778. 

On  the  other  hand,  it  was  held  by  the  Court  of  Appeals  of  New 
York  in  a  case  arising  out  of  the  same  flood  which  caused  the  de- 
struction of  the  goods  involved  in  Denny  v.  New  York  Cent. 
R.  Co.,  13  Gray  (Mass.)  481,  supra,  that  the  preceding  negligent 
delay  on  the  part  of  the  carrier,  in  consequence  of  which  the 
goods  were  overtaken  by  the  flood,  was  sufficient  ground  for  hold- 
ing the  carrier  to  be  liable  for  the  loss.  Michaels  v.  New  York 
Cent.  R.  Co.,  30  N.  Y.  564;  Read  v.  Spaulding,  30  N.  Y.  630. 
And  the  same  court  had  adhered  to  this  view  in  case  of  a  loss  by 
fire  covered  by  valid  exception  in  the  bill  of  lading.  Condict 
V.  Grand  Trunk  R.  Co.,  54  N.  Y.  500.  The  Illinois  Supreme 
Court  has  consistently  followed  the  rule  of  the  New  York  cases 
in  holding  that  negligent  delay  subjecting  the  goods  to  loss  by 
the  JohnstoA\Ti  flood  rendered  the  carrier  liable  (Wald  v.  Pitts- 
burg, C,  C.  &  St.  L.  R.  Co.,  162  111.  545),  and  likewise  that  similar 
delay  rendered  the  carrier  liable  for  damage  to  the  goods  by 
freezing.    *     *     * 

The  irreconcilable  conflict  in  the  authorities  is  recognized  by 
text- writers,  and  while  the  weight  of  general  authority  has  in 
many  cases  been  said  to  support  the  rule  announced  in  Massa- 
chusetts and  Pennsylvania  cases  (1  Thompson,  Negligence,  §  74; 
Sehouler,  Bailments  [Ed.  1905]  §348;  Hale,  Bailments  and 
Carriers,  361;  6  Cyc.  382;  notes  in  36  Am.  St.  Rep.  838),  other 
authorities  prefer  the  New  York  rule  (Hutchinson,  Carriers  [2d 
Ed.]  S200;  Ray,  Negligence  of  Imposed  Duties,  177).  In  the 
absence  of  any  express  declaration  of  this  court  on  the  very  point. 


422  DAMAGES   IN    ACTIONS   FOR   WRONGS. 

aiui  in  view  of  the  fact  that  in  most  recent  cases  the  conflict  of 
autliority  is  still  recognized  (see  5  Cur.  Law,  517)  it  seems 
necessary  that  the  reasons  on  which  the  two  lines  of  cases  are 
sujiported  shall  be  considered  in  order  that  we  may  now  reach 
a  conclusion  which  shall  be  satisfactory  to  us.     *     *     * 

Now,  while  it  is  true  that  defendant  could  not  have  anticipated 
this  particular  flood  and  could  not  have  foreseen  that  its  negli- 
gent delay  in  transportation  would  subject  the  goods  to  such  a 
danger,  yet  it  is  now  apparent  that  such  delay  did  subject  the 
goods  to  the  danger,  and  that  but  for  the  delay  they  would  not 
have  been  destroyed ;  and  defendant  should  have  foreseen,  as  any 
reasonable  person  could  foresee,  that  the  negligent  delay  would 
extend  the  time  during  which  the  goods  would  be  liable  in  the 
hands  of  the  carrier  to  be  overtaken  by  some  such  casualty,  and 
would  therefore  increase  the  peril  that  the  goods  should  be  thus 
lost  to  the  shipper.  This  consideration  that  the  peril  of  acciden- 
tal destruction  is  enhanced  by  the  negligent  extension  of  time 
during  which  the  goods  must  remain  in  the  carrier's  control  and 
out  of  the  control  of  the  owner,  and  during  which  some  casualty 
may  overtake  them,  has  not,  we  think,  been  given  sufficient  con- 
sideration in  the  cases  in  which  the  carrier  has  been  held  not 
responsible  for  a  loss  for  which  he  is  not  primarily  liable,  but 
which  has  overtaken  the  goods  as  a  consequence  of  the  preceding 
delay  in  their  transportation. 

It  is  not  sufficient  for  the  carrier  to  say  by  way  of  excuse  that 
while  a  proper  and  diligent  transportation  of  the  goods  would 
have  kept  them  free  from  the  peril  by  which  they  were  in  fact 
lost  it  might  have  subjected  them  to  some  other  peril  just  as 
great.  He  cannot  speculate  on  mere  possibilities.  *  *  * 
The  wrongful  act  of  the  carrier  which  in  fact  subjects  the  goods 
to  loss  renders  him  liable  for  such  loss  although  the  circum- 
stances under  which  it  occurred  could  not  have  been  anticipated. 
#     *     « 

We  are  satisfied  that  the  sounder  reasons,  supported  by  good 
authority,  require  us  to  hold  that  in  this  case  the  carrier  is  liable 
for  the  loss  of  and  damage  to  plaintiff's  goods,  and  the  judgment 
of  the  trial  court  is  therefore  reversed. 


NEGLIGENCE.  423 

2)     Death  hy  NcffUgence. 

HASSENYER  v.  IMICHIGAN  CENT.  R.  R.  CO. 

Michigan,   1882.       48  IVIieh.  205. 

Defendant  brings  error. 
'  CooLEY,  J.  The  plaintiff  in  error  was  sued  by  the  adminis- 
trators of  Louisa  Hassenyer  to  recover  damages  for  the  neg- 
ligence of  its  agents  and  servants  whereby  her  death  was  caused. 
The  case  comes  up  on  alleged  errors  in  the  admission  and  rejec- 
tion of  evidence,  and  in  instructions  given  or  refused. 

The  decedent  was  killed  at  the  crossing  of  the  railroad  with 
Burdick  street,  one  of  the  principal  streets  in  the  village  of  Kal- 
amazoo, on  the  20th  day  of  December,  1878.  She  was  a  girl  13 
years  of  age,  and  was  proceeding  along  the  street  with  a  small 
pail  of  milk  in  her  hands.  The  morning  was  somewhat  cold  and 
stormy.  As  she  approached  the  railroad  track  a  train  was  pass- 
ing in  one  direction,  and  its  bell  was  being  rung.  From  the 
other  direction  an  engine  was  backing  up  several  cars,  and  its 
bell  was  also  being  rung.  It  was  by  this  train  that  the  girl  was 
struck  and  killed.  There  was  a  flagman  at  the  crossing,  and 
no  negligence  seems  attributable  to  him.  The  brakeman  on 
the  backing  train  was  upon  the  ground,  walking  along  by  its 
side  to"  guard  against  accidents,  but  did  not  notice  the  girl  until 
she  had  been  thrown  to  the  ground  and  killed.  No  one  saw 
the  girl  when  she  was  struck,  and  the  place  where  she  was  lying 
when  first  seen  was  outside  the  limits  of  the  street. 

It  was  contended  for  the  defense  that  there  was  no  evidence 
of  negligence  on  the  part  of  the  railroad  agents  and  servants, 
and  therefore  nothing  to  go  to  the  jury.  It  was  also  insisted  that 
a  clear  case  of  negligence  on  the  part  of  the  decedent  appeared, 
and  that  upon  this  ground,  if  not  upon  the  other,  the  court 
should  have  instructed  the  jury  to  return  a  verdict  for  the  de- 
fendant. We  do  not  agree  that  the  case  was  so  plain  on  either 
ground  as  to  justify  the  court  in  taking  it  from  the  jury.  It 
may  be  that  if  we  were  at  liberty  to  pass  upon  the  facts  we 
should  reach  the  conclusion  which  the  defense  insists  upon  as 
the  only  conclusion  that  is  admissible ;  but  we  cannot  say  that 
the  ease  is  too  plain  upon  the  facts  for  fair  minds  to  differ 
upon,  and  following  our  former  decisions  we  agree  with  the  trial 
court  that  the  facts  were  properly  left  to  the  jury.    Detroit,  etc. 


424  DAMAGES   IN    ACTIONtt   FOH    VVliOiNUo. 

\\.  R.  Co.  V.  Van  Stcinburg,  17  ;\Lieh.  [VJ;  hake  tSliore,  etc.  R.  R. 
Co.  V.  Miller,  25  JMieh.  274,  295;  LeBciron  v.  Josliu,  41  i\iieh.  313. 

Upon  a  supposition  that  the  jury  might  hnd  that  the  de- 
t'otient  at  the  time  she  was  struck  and  killed  was  outside  the 
limits  of  the  highway  and  upon  lands  belonging  to  the  railroad 
company,  the  defense  requested  rulings  in  effect  that  if  such  was 
the  fact  the  decedent  was  in  law  chargeable  with  negligence.  We 
do  not  agree  that  this  was  necessarily  the  case.  The  fact  might 
have  an  important  bearing,  or  it  might  not;  depending  on  how 
far  she  was  outside  the  street  lines,  and  why  she  was  there,  and 
whether  she  was  aware  of  the  fact.  As  the  street  was  without 
fences  or  cattle-guards  at  this  point,  it  would  be  unreasonable  to 
hold  that  at  her  peril  she  must  keep  herself  strictly  within  its 
lines,  and  if  no  intent  to  leave  the  highway  was  apparent,  and 
she  was  not  further  outside  than  one  might  inadvertently  go  in 
passing  along  the  street  and  looking  both  ways  for  coming  and 
passing  trains,  the  fact  should  neither  absolve  the  employes  of 
the  railroad  company  from  the  observation  of  care  to  prevent  in- 
jury, nor  charge  her  with  fault  if  otherwise  sufficiently  vigilant. 

Counsel  for  the  plaintiff  in  error  has  been  industrious  in  the 
discovery  of  faults  in  the  rulings  of  the  circuit  judge,  but  for  the 
most  part  his  criticisms  are  too  particular  and  technical  to  be 
accepted,  or  to  require  discussion  at  our  hands.  With  a  single 
exception  we  think  no  error  was  committed  to  the  prejudice  of 
the  party  now  complaining.  The  exception  is  found  in  the 
instructions  to  the  jury  respecting  the  degree  of  care  required 
of  the  decedent  to  avoid  the  danger  to  which  she  fell  a  victim. 
It  was  contended  for  the  plaintiff  below  that  the  law  did  not 
require  the  same  degree  of  care  of  a  child  as  of  an  adult  per- 
son, and  the  court  so  instructed  the  jury.  This  was  unques- 
tionably correct.  Railway  Co.  v.  Bohn,  27  Mich.  503.  But  it 
was  also  insisted  that  the  law  did  not  expect  or  require  the  same 
degree  of  care  and  prudence  in  a  woman  as  in  a  man ;  and  the 
court  gave  this  instruction  also.  It  is  presumable,  therefore,  that 
the  jury  in  considering  whether  the  decedent  was  chargeable 
with  contributory  negligence,  made  not  only  all  proper  allow- 
ances on  account  of  her  immature  years,  but  further  allowance 
also  on  account  of  sex. 

No  doubt  the  difference  in  sex  has  much  to  do  with  the  ap- 
plication of  legal  principles  in  many  cases.  Police  regulations 
with  the  utmost  propriety  sometimes  make  distinctions  between 


NEGLIGENCE.  425 

men  and  women,  in  the  conduct  required  of  them  under  the 
same  circumstances,  and  the  unwritten  law  is  in  some  particu- 
lars more  indulgent  to  the  one  sex  than  the  other.  Words  and 
conduct  which  in  the  presence  of  men  might  be  condemned  for 
bad  taste  only,  in  the  presence  of  women  may  be  punishable  as 
criminal  indecency,  and  a  crime  of  violence  committed  upon 
the  one  would  be  condemned  less  severely  by  public  opinion  and 
punished  less  severely  by  the  law  than  the  same  crime  com- 
mitted upon  the  other.  And  no  doubt  also  the  law  ought,  under 
all  circumstances  where  they  become  important,  to  make  al- 
lowances for  any  differences  existing  by  nature  between  men 
and  women,  and  also  for  any  that  grow  out  of  their  different 
occupations,  modes  of  life,  education  and  experience.  A  woman, 
for  example,  driving  a  horse  on  a  highway,  may  be  presumed 
somewhat  wanting  in  the  "amount  of  knowledge,  skill,  dexter- 
ity, steadiness  of  nerve,  or  coolness  of  judgment — in  short,  the 
same  degree  of  competency"  which  we  may  presume  in  a  man; 
and  the  person  meeting  her  under  circumstances  threatening 
collision  should  govern  his  own  conduct  with  some  regard  to 
her  probable  deficiencies.  Daniels  v.  Clegg,  28  Mich.  33,  42, 
In  Snow  V.  Provineetown,  120  Mass.  580,  a  question  of  contrib- 
utory negligence  was  made  against  a  young  woman  who,  in 
attempting  to  pass  a  cart  in  a  public  way,  which  had  com- 
menced backing  towards  her,  accidentally  fell  over  an  embank- 
ment and  was  injured.  The  following  instruction  by  the  trial 
judge  to  indicate  the  degree  of  care  required  of  the  plaintiff, 
was  held  unexceptionable :  ' '  Care  implies  attention  and  caution, 
and  ordinary  care  is  such  a  degree  of  attention  and  caution  as  a 
person  of  ordinary  prudence  of  the  plaintiff's  sex  and  age  would 
commonly  and  might  reasonably  be  expected  to  exercise  under 
like  circumstances."    This  no  doubt  is  true. 

But  while  the  authorities  permit  all  the  circumstances  to  be 
taken  into  the  account,  age  and  sex  among  the  rest,  in  deter- 
mining the  degree  of  care  to  be  reasonably  required  or  looked 
for,  no  case,  so  far  as  we  know,  has  ever  laid  it  down  as  a  rule 
of  law  that  less  care  is  required  of  a  woman  than  of  a  man. 
Sex  is  certainly  no  excuse  for  negligence  (Fox  v.  Glastenbury,  29 
Conn.  204)  ;  and  if  we  judge  of  ordinarv'  care  by  the  standard 
of  what  is  commonly  looked  for  and  expected,  we  should  prob- 
ably agree  that  a  woman  would  be  likely  to  be  more  prudent, 
careful  and  particular  in  many  positions  and  in  the  performance 


-12G  DAMAGES   IN    ACTIONS   FOR   WRONGS. 

•of  many  duties  than  a  man  would.  She  would,  for  example,  be 
more  vigilant  and  indefatigable  in  her  care  of  a  helpless  child ; 
she  would  be  more  cautious  to  avoid  unlmown  dangers;  she 
would  be  more  particular  to  keep  within  the  limits  of  absolute 
safety  when  the  dangers  which  threatened  were  such  as  only 
great  strength  and  courage  could  venture  to  encounter.  Of  a 
given  number  of  persons  travelling  by  cars,  several  men  will  ex- 
pose themselves  to  danger  by  jumping  from  the  cars  when  they 
are  in  motion,  or  by  standing  upon  the  platform,  where  one 
woman  would  do  the  same ;  and  a  man  driving  a  team  would  be 
more  likely  to  cross  in  front  of  an  advancing  train  than  a 
woman  would.  In  many  such  cases  a  woman's  natural  timidity 
and  inexperience  with  dangers  inclines  her  to  be  more  cautious; 
and  if  we  naturally  and  reasonably  look  for  greater  caution  in 
the  woman  than  in  the  man,  any  rule  of  law  that  demands  less 
must  be  unphilosophical  and  unreasonable. 

Suppose,  for  instance,  that  a  man  and  woman  standing  to- 
gether upon  the  platform  of  a  moving  car  are  accidentally 
thrown  off  and  injured,  could  any  rule  of  law  be  justitied  which 
would  permit  a  jury  to  award  damages  to  her  but  not  to  him, 
upon  the  ground  that  the  law  expected  and  required  of  him  the 
higher  degree  of  care?  Or  may  the  woman  venture  upon  an 
unsafe  bridge  from  which  the  man  recoils,  under  the  protection 
of  such  a  discrimination  1  Or  trust  herself  to  a  fractious  horse 
expecting,  if  she  shall  chance  to  be  injured,  the  tenderness  of 
the  law  will  excuse  her  with  a  verdict  of  such  care  as  was  rea- 
sonably to  be  expected,  when  it  would  pronounce  a  man  fool- 
hardy?    We  think  not. 

No  person  of  any  age  or  sex  is  chargeable  with  legal  fault 
who,  when  placed  in  a  position  of  peril,  does  the  best  that  can 
be  done  under  the  circumstances.  Voak  v.  Northern  Central 
Ry.  Co.,  75  N.  Y.  320.  Even  this  statement  indicates  a  more 
rigid  rule  than  the  law  will  justify,  for  the  legal  requirement 
is  only  the  observance  of  ordinary  care;  and  while  in  laying 
down  rules  that  are  of  general  application,  it  is  no  doubt  better 
to  employ  general  terms,  lest  they  be  supposed  applicable  to 
particular  classes  only  (Tucker  v.  Henniker,  41  N.  TI.  317)  ;  yet 
when  the  actor  is  a  woman,  an  instruction  that  she  is  bound  to 
observe  the  conduct  of  a  woman  of  common  and  ordinary 
prudence,  cannot  be  held  legally  erroneous  because  of  being  thus 
special.    Bloomington  v.  Perdue,  99  111.  329. 


NEGLIGENCE.  427 

Women  may  enter  upon  and  follow  any  of  the  occupations 
of  life ;  they  may  be  surgeons  if  they  will,  but  they  cannot  as 
such  claim  any  privilege  of  exemption  from  the  care  and  cau- 
tion required  of  men.  A  woman  may  be  engineer  of  a  loco- 
motive if  she  can  obtain  the  employment,  but  the  law  will  ex- 
pect and  require  of  her  the  same  diligence  to  avoid  mischief  to 
others  which  men  must  observe.  The  rule  of  prudent  regard  for 
the  rights  of  others  knows  nothing  of  sex.  Neither  can  sex  ex- 
cuse anyone  for  the  want  of  ordinary  care  when  exposing  one's 
self  to  known  and  obvious  perils. 

If  it  was  apparent  that  the  error  of  the  judge  did  not  mislead 
in  this  case,  we  might  affirm  the  judgment.  But  that  fact  is 
not  apparent.  No  one  witnessed  this  accident ;  the  question  of 
due  care  is  involved  in  doubts,  and  the  erroneous  ruling  may 
have  been  controlling.  It  follows  that  there  must  be  a  new 
trial. 

The  other  justices  concurred. 


DEMAREST  v.  LITTLE. 

New  Jersey,  1885.     47  N.  J.  L.  28. 

In  case.    On  rule  to  show  cause  etc. 

Magie,  J.  This  action  was  brought  to  recover  damages  for  the 
death  of  plaintiffs'  testator,  which  occurred  in  the  disaster  at 
Parker's  Creek  bridge,  on  the  Long  Branch  Railroad,  on  June 
29,  1882.  Defendant  was  charged  with  responsibility  therefor  as 
receiver  of  the  Central  Railroad  Company  of  New  Jersey,  and 
as  having,  in  that  capacity,  contracted  to  carry  deceased  with  due 
care. 

The  case  was  first  tried  in  1883,  and  a  verdict  rendered  for 
plaintiffs,  assessing  their  damages  at  $30,000.  This  verdict 
was  afterwards  set  aside  upon  a  rule  to  show  cause.  No  opinion 
was  delivered,  but  the  court  announced  that  a  new  trial  was  al- 
lowed because  the  damages  were  excessive.  The  case  has  been 
again  tried,  and  the  verdict  has  been  again  rendered  for  plaintiffs, 
assessing  their  damages  at  $27,500.  A  rule  to  show  cause  was 
allowed  and  is  now  sought  to  be  made  absolute  upon  the  fol- 
lowing grounds:  first,  that  the  evidence  was  not  sufficient  to 
justify  the  conclusion  that  testator's    death   was    due    to   neg- 


428  DAMAGES    IN    ACTIONS   FOR   WRONGS, 

ligenee  or  want  of  care;  second,  that  if  so,  defendant,  as  re- 
ceiver, was  not  liable  for  any  uegligcuce  except  his  own,  while 
the  alleged  negligence  was  that  of  employees ;  and  third,  that  the 
damages  awarded  are  excessive. 

Upon  the  lirst  ground  it  was  urged  that  the  evidence  upon 
this  trial  was  variant  from  and  more  favorable  to  defendant 
than  that  produced  on  the  former  trial.  Whether  that  be  so 
or  not,  a  careful  perusal  of  the  evidence  satisfies  me  that 
there  was  sufficient  to  warrant  the  conclusion  that  testator's 
death  was  due  to  negligence  or  want  of  proper  care. 

The  second  objecton  has  already  been  disposed  of  in  a  ease 
growing  out  of  this  same  disaster,  and  in  which  the  Court  of 
Errors  has  affirmed  the  responsibility  of  the  receiver  for  such 
negligence.  Woodruff's  Adm'r  v.  Little,  Receiver,  17  Vroom, 
614.    The  verdict  ought  not  to  be  disturbed  on  those  grounds. 

The  question  presented  by  the  claim  that  the  damages  are 
excessive  is  of  more  difficulty.  The  action  is  created  by  statute 
which  supplies  the  sole  measure  of  the  damages  recoverable  there- 
in. They  are  to  be  determined  exclusively  by  reference  to  the 
pecuniary  injury  resulting  to  the  widow  and  next  of  kin  of  de- 
ceased by  his  death.  The  injury  to  be  thus  recovered  for  has 
been  defined  by  this  court  to  be  "  the  deprivation  of  a  reasonable 
expectation  of  a  pecmiiary  advantage  which  would  have  result- 
ed by  a  continuance  of  the  life  of  deceased."  Paulmier  v.  Erie 
Railway  Co.,  5  Vroom,  151.  Compensation  for  such  deprivation 
is  therefore  the  sole  measure  of  damage  in  such  cases.  A  difficult 
task  is  thereby  imposed  upon  a  jury,  for  they  are  obliged  to  de- 
termine probabilities  and  "must,  to  a  large  extent,  form  their 
estimate  of  damages  on  conjectures  and  uncertainties."  But  the 
case  in  hand  seems  to  present  less  complicated  problems  than 
other  cases  of  the  same  nature. 

Deceased  left  no  widow,  and  but  three  children.  All  of 
them  had  reached  maturity.  Two  sons  were  self-supporting; 
the  daughter  was  married.  He  owed  no  present  duty  of  support, 
and  there  is  nothing  to  show  any  fixed  allowance  or  even  casual 
benefactions  to  them.  They  were  therefore  deprived  of  no  im- 
mediate pecuniary  advantage  derivable  from  him.  At  his  death 
he  was  in  business,  in  partnership  with  his  sons  and  son-in-law. 
All  the  partners  gave  attention  to  the  business,  and  the  capital 
was  furnished  by  deceased.  His  death  dissolved  the  partner- 
ship, and  deprived  the  surviving  partners  of  such  benefit  as  they 


NEGLIGENCE.  429 

had  derived  from  his  credit,  capital,  skill,  and  reputation.  But 
the  injury  thus  resulting  is  not  within  the  scope  of  this  statute, 
which  gives  damages  for  injuries  resulting  from  the  severance  of 
a  relation  of  kinship  and  not  of  contract.  No  damages  could  be 
awarded  on  that  ground. 

Defendants  strenuously  urge  that,  outside  of  the  partnership, 
or  in  the  event  of  its  dissolution,  the  next  of  kin  had  a  reasonable 
-expectation  of  deriving  from  the  parental  relation  an  advantage 
by  way  of  services  rendered  or  counsel  given  by  deceased  in  their 
affairs.  A  claim  of  this  sort  must  be  carefully  restricted  within 
the  limits  of  the  statute.  The  counsels  of  a  father  may,  in  a 
moral  point  of  view,  be  of  inestimable  value.  The  confidential 
intercourse  between  parent  and  child  may  be  prized  beyond 
measure,  and  its  deprivation  may  be  productive  of  the  keenest 
pain.  But  the  legislature  has  not  seen  fit  to  permit  recovery  for 
such  injuries.  It  has  restricted  recovery  to  the  pecimiary  in- 
jury ;  that  is,  the  loss  of  something  having  pecuniary  value. 

Now  it  may  with  some  reason  be  anticipated  that  a  father, 
out  of  love  and  affection,  might,  if  circumstances  rendered  it 
proper,  perform  gratuitous  service  for  a  child,  which,  by  ren- 
dering unnecessary  the  employment  of  a  paid  servant,  would  be 
of  pecuniary  value,  and  that  he  might,  by  advice  in  respect  to 
business  affairs,  be  of  a  possible  pecuniary  benefit.  But  whether 
such  an  anticipation  is  reasonable  or  not  must  depend  on  the 
circumstances.  Considering  the  age,  the  assured  position,  the 
business  and  other  relations  of  these  children,  it  is  obvious  that 
the  probability  of  any  pecimiary  advantage  to  accrue  to  them  in 
these  modes  was  very  small.  Indeed,  it  would  not  be  too  much 
to  say  that  resort  must  be  had  to  speculation  to  discover  any 
such  advantage.  At  all  events,  compensation  for  this  injury  in 
this  case  could  not  exceed  a  small  sum  without  being  excessive. 

The  principal  basis  for  plaintiff's  claim  is  obviously  this:  that 
the  death  of  deceased  put  an  end  to  accumulations  which  he 
might  have  thereafter  made  and  which  might  have  come  to  the 
next  of  kin.  Deceased  had  accumulated  about  $70,000,  all  of 
which,  except  $10,000  capital  invested  in  the  business,  seems  to 
have  been  placed  in  real  estate  and  securities  as  if  for  permanent 
investment.  By  his  will  the  bulk  of  his  property  was  given 
to  his  children.  At  his  death  he  had  no  other  source  of  income 
than  his  investments  and  his  business. 

In  determining  the  probability  of  accumulation  by  deceased  if 


430  DAMAGES    IN    ACTIONS    FOK    WRONGS. 

he  had  continued  in  life,  no  account  should  be  taken  of  the  in- 
come derivable  from  his  investments.  These  have  come  in  bulk 
to  the  ehildrou,  who  may,  if  they  clioose,  accumulate  such  income. 
A  deprivation  of  the  probability  of  his  accumulating  therefrom 
is  no  pecuniary  injury.  On  the  contrary,  it  is  rather  a  benefit  to 
thom  to  receive  at  once  the  whole  fmid  in  lieu  of  the  mere  con- 
tingency or  probability  of  receiving  it,  though  with  its  accumula- 
tions (at  best  uncertain)  in  the  future.  Indeed,  the  benefit 
thus  accruing  to  the  next  of  kin  in  receiving  at  once  this  whole 
property,  in  the  view  of  one  of  the  court,  is  at  least  equivalent  to 
the  present  value  of  the  probability  of  their  receiving  it  here- 
after, if  deceased  had  continued  in  life,  with  all  his  probable  fu- 
ture accumulations  from  any  source  whatever,  in  which  case  it  is 
evident  that  his  death  has  not  resulted  in  any  pecuniary  injury 
to  them.  But  without  adopting  this  view  of  the  evidence,  it  is 
plain  that  in  determining  probable  future  accumulations  atten- 
tion should  be  restricted  to  such  as  would  arise  from  the  labor 
of  deceased  in  his  business.  His  receipts  from  the  business  for 
the  two  years  it  had  been  conducted  were  proved.  What  he  ex- 
pended was  not  proved,  but  left  to  be  inferred  from  his  mode  of 
life.  At  death  he  was  about  fifty-six  and  a  half  years  old  and  by 
the  proofs  had  an  expectation  of  life  of  sixteen  and  seven-tenths 
years. 

From  these  facts  the  jury  were  to  find  what  deceased  would 
probably  have  acumulated,  what  probability  there  was  that  his 
next  of  kin  w^ould  have  received  his  accumulations,  and  then  what 
sum  in  hand  would  compensate  them  for  being  deprived  of  that 
probability.  In  what  manner  the  jury  attempted  to  solve  this 
problem  we  cannot  ascertain.  Plaintiffs'  counsel  attempts  to 
show  the  correctness  of  the  result  reached,  by  calculation.  He 
assumes  the  income  of  deceased  from  his  business  during  the 
last  year  as  the  annual  income  likely  to  be  obtained,  and  deducts 
only  $1,000  each  year  as  the  probable  expenditure  of  deceased, 
and  then  finds  the  present  worth  of  the  net  income  so  determined 
for  the  deceased's  expectation  of  life  is  $27,710.32. 

This  calculation  tests  the  propriety  of  this  verdict,  and  in 
my  judgment  conclusively  shows  that  it  was  rather  the  result 
of  sympathy  or  prejudice  than  a  fair  deduction  from  the  evi- 
dence. For,  assuming  the  amount  attributable  to  the  loss  of 
dpceased's  sei'vices  was  but  small  Cand  if  more  it  was  excessive), 
the  award  of  the  jury  on  this  account  was  but  a  few  hundred 


NEGLIGENCE.  431 

iollars  less  than  the  present  worth  of  the  full  net  income  if  re- 
ceived for  his  full  expectancy  of  life.  To  reach  such  a  result 
the  jury  must  have  found  every  one  of  the  following  con- 
tingencies in  favor  of  the  next  of  kin,  viz. :  that  deceased,  who 
had  already  acquired  a  competence,  would  have  continued  in  the 
toil  of  business  for  his  full  expectancy  of  life;  that  he  would 
have  retained  sufficient  health  of  body  and  vigor  of  mind  to 
enable  him  to  do  so,  and  as  successfully  as  before ;  that  he  would 
have  been  able  to  avoid  the  losses  incident  to  business,  and 
would  have  safely  invested  his  accumulations ;  and  that  the  next 
of  kin  would  have  received  such  accumulations  at  his  death.  A 
verdict  which  attributes  no  more  weight  than  this  has,  to  the 
probability  that  one  or  more  of  all  these  contingencies  would 
happen,  cannot  have  proceeded  from  a  fair  consideration  of 
the  case  made  by  the  evidence. 

Having  reached  this  conclusion,  what  should  be  the  result  as 
to  the  verdict? 

The  charge  of  the  court  below  declared  the  rule  of  damages 
with  accuracy.  The  verdict  is  a  second  one,  and  somewhat 
smaller  than  that  previously  set  aside  as  excessive.  It  is  un- 
usual to  set  aside  a  second  verdict,  but  though  unusual  it  is 
within  the  power  of  the  court  in  the  exercise  of  its  discretion. 
That  power  will  be  discreetly  used  in  setting  aside  any  verdict 
which  does  palpable  injustice. 

To  obviate,  if  possible,  the  necessity  of  another  trial,  it  has 
been  determined  that  if  plaintiffs  will  reduce  their  verdict  to 
$15,000  by  remitting  the  excess,  the  verdict  may  stand  for  that 
sum,  and  the  rule  to  show  cause  be  discharged.  Unless  they  con- 
sent to  such  remission,  the  rule  must  be  made  absolute. 


HEGERICH  V.  KEDDIE. 

New  York,  1885.     09  X.  Y.  258. 

•  Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme 
Court  entered  upon  an  order,  which  reversed  a  judgment  in 
favor  of  the  defendant,  entered  upon  an  order  sustaining  a  de- 
murrer to  plaintiff's  complaint.  The  action  was  brought  to 
recover  damages  for  the  death  of  plaintiff's  intestate,  alleged  to 
have  been  caused  by  the  negligence  of  defendant's  testator. 


432  DAMAGES   IN    ACTIONS   FOR    WRONGS. 

Defendant  demurred  and  claimed  that  the  cause  of  action 
ilid  not  survive. 

RuGER,  Ch.  J.  A  brief  reference  to  some  of  the  elementary 
principles,  applying  to  civil  actions  will  serve  the  purpose,  at 
least,  of  detiniug  the  terms  used,  and  the  modifications  intro- 
duced, into  the  law  by  the  statutes  hereinafter  referred  to. 
Such  actions  were  primarily  divided  into  two  classes,  distin- 
guished as  actions  ex  contractu  and  ex  delicto.  The  actions  known 
as  detinue,  trespass,  trespass  on  the  case,  and  replevin  were 
those  used  in  causes  of  action  arising  from  torts,  and  were  de- 
scribed as  actions  ex  delicto.  Trespass  on  the  case  was  the  ap- 
propriate form  of  remedy  for  all  injuries  to  persons  or  prop- 
erty which  did  not  fall  within  the  compass  of  the  other  forms 
of  action.  (3  Stephens'  Com.  449.)  At  common  law,  origin- 
ally, all  actions  arising  ex  delicto  died  with  the  person  by  whom 
or  to  whom  the  wrong  was  done.  Thus,  when  the  action  was 
founded  on  any  malfeasance,  or  misfeasance,  was  a  tort,  or 
arose  ex  delicto,  such  as  trespass  for  taking  goods,  etc.,  trover, 
false  imprisonment,  assault  and  battery,  slander,  deceit,  divert- 
ing a  water-course,  obstructing  lights,  escape,  and  many  other 
cases  of  the  like  kind,  where  the  declaration  imputes  a  tort 
done  either  to  the  person  or  property  of  another,  and  the  plea 
must  be  "not  guilty,"  the  rule  was  "actio  personalis  moritur 
cum  persona."  (1  Wms.  on  Exrs.  668.)  It  was,  however,  held 
in  Hambly  v.  Troth  (Cowp.  371),  Lord  Mansfield  delivering 
the  opinion,  that,  "if  it  is  a  sort  of  injury  by  which  the  offender 
acquires  no  gain  to  himself  at  the  expense  of  the  sufferer,  as 
beating  or  imprisoning  a  man,  etc,  then  the  person  injured  has 
only  a  reparation  for  the  delictum,  in  damages  to  be  assessed 
by  a  jury.  But,  when,  besides  the  crime,  property  is  acquired 
which  benefits  the  testator,  then  an  action  for  the  value  of  the 
property  shall  survive  against  the  executor."  "So  far  as  the 
tort  itself  goes,  an  executor  shall  not  be  liable,  and  therefore  it 
is  that  all  public  and  private  crimes  die  with  the  offender,  and 
the  executor  is  not  chargeable ;  but  so  far  as  the  act  of  the  of- 
fender is  beneficial,  his  assets  ought  to  be  answerable,  and  his 
executor,  therefore,  shall  be  charged."  By  the  statute  of  4th 
Edward  III,  chapter  7,  actions  " de  honis  asportatis"  were 
given  to  the  executors  of  a  deceased  person  for  personal  prop- 
erty taken  from  their  testator  and  carried  away,  but  for  all 
other  causes  of  action  arising  out  of  wrongs  done  either  to  the 


NEGLIGENCE.  433 

person  or  property  the  rule  of  ''actio  personalis  moritur  cum, 
persona"  applied.  (1  Wms.  Exrs.  672.)  Under  the  clause  of 
the  Constitution  making  the  rules  of  the  common  law  the  law 
of  the  State,  it  must  be  held  that  these  rules  still  determine  the 
survivability  of  actions  for  torts,  except  where  the  law  has  been 
specially  modified  or  changed  by  statute. 

It  had  been  held  in  this  State  prior  to  the  enactment  of  the 
Revised  Statutes  that  an  action  against  the  representatives  of  a 
postmaster  for  money  feloniously  abstracted  from  a  letter  by 
his  clerk  (Franklin  v.  Low,  1  Johns,  402),  and  against  a  sher- 
iff's representatives  for  an  escape  occurring  during  his  life- 
time (Martin  v.  Bradley,  1  Gaines,  124),  did  not  lie  against  such 
representatives.  In  the  case  of  People  v.  Gibbs,  9  Wend.  29, 
decided  in  1832,  it  was  held  that  an  action  against  the  execu- 
tors of  a  sheriff  for  the  default  of  his  deputy  in  returning  proc- 
ess, notwithstanding  an  action  in  assumpsit  for  money  had 
and  received  was  by  statute  authorized  therefor,  did  not  lie, 
inasmuch  as  the  cause  of  action  was  founded  in  tort. 

As  no  reference  is  made  in  this  case  to  the  Revised  Statutes, 
it  is  inferred  that  it  arose  previous  to  their  enactment,  although 
the  case  does  not  disclose  that  fact.  Still  the  date  of  the  trial, 
November,  1830,  would  not  necessarily  lead  to  such  an  infer- 
ence. The  Revised  Laws  (Vol.  1,  p.  311)  had  theretofore  en- 
larged the  scope  of  the  statute  of  4th  Edward  III.,  and  pro- 
vided for  actions  by  and  against  executors  and  administrators 
for  property  taken  and  converted  by  the  testator  or  intestate 
during  his  life-time.  LTnder  this  condition  of  the  law  the  pro- 
visions of  the  Revised  Statutes  were  enacted  in  1828,  and  con- 
tain the  rule  by  which  this  controversy  must  be  determined. 
Section  1  reads  as  follows:  "For  wrongs  done  to  the  property 
rights  or  interests  of  another  for  which  an  action  might  be 
maintained  against  the  wrong-doer,  such  action  may  be  brought 
by  the  person  injured,  or  after  his  death,  by  his  executors  or 
administrators  against  such  wrong-doer,  and  after  his  death, 
against  his  executors  or  administrators  in  the  same  manner  and 
with  the  like  effect  in  all  respects  as  actions  founded  upon  con- 
tract." Section  2.  "But  the  preceding  section  shall  not  extend 
to  actions  for  slander,  for  libel,  or  to  actions  of  assault  and  bat- 
tery or  false  imprisonment,  nor  to  actions  on  the  case  for  in- 
juries to  person  of  the  plaintiff  or  to  the  person  of  the  testa- 
tor or  intestate  of  any  executor  or  administrator."     It  cannot 

28 


434  DAMAGES   IN   ACTIONS    FOR    WRONGS. 

be  siiccessfiilly  claimed  that  the  language,  "actions  on  the  ease 
for  injuries  to  the  person"  up  to  this  time  did  not  include,  ac- 
cording to  universal  classification,  all  actions  without  regard 
to  the  person  or  persons  to  whom  they  accrued,  which  had  as 
their  cause,   or   were  founded  upon   injuries   to  tiie   person  of 
another  arising  from  the  negligent  or  careless  conduct  of   a 
wrong-doer.     It  must  also,  upon  well-settled  principles  of  con- 
struction, be  conceded  that  these  terms  were  used  according  to 
their  legal  and  well-understood  signification  at  the  time  of  their 
employment.     If  the  language  of  the  statute  applicable  to  this 
case  be  collocated  and  read  according  to  its  plain  meaning  and 
intent,  the  following  sentence  would    seem    to  be    the    result. 
Actions  by  and  against  executors  and  administrators  for  wrongs 
done  to  the  property  rights,  or  interests  of  their  intestate  or 
testator  are  hereby  authorized,  but  so  far  as  such  wrongs  have 
heretofore  been  remediable  by  actions  on  the  case  for  injuries 
to  the  person  of  the  plaintiff,  or  to  the  person  of  the  intestate 
or  testator  of  any  executor  or  administrator,  they  shall  not  sur- 
vive the  death  of  the  person  to  whom  or  by  whom  the  wrong 
is  done.    The  wrongs  referred  to  in  these  sections  are  such  only 
as  are  committed  upon  the  "property  rights,  or  interests"  of 
the  testator  or  intestate,  and  to  a  cause  of  actio-n  for  which  the 
executors  and  administrators  acquire  a  derivative    title  alone. 
The  whole  scope  and  design  of  the  statute  is  to  extend  a  remedy 
already  accrued,  to  the  representatives  of  a  deceased  party,  and 
provide  for  the  survival  only  of  an  existing  cause  of  action. 

Among  the  questions  which  have  arisen  over  the  construction 
of  these  sections  the  most  prominent  are  probably  those  relating 
to  the  signification  of  the  words  "property  rights  or  interests," 
as  used  in  the  first  section,  and  the  effect  of  the  enumeration  in 
the  second  section,  of  certain  specific  actions  as  being  excepted 
from  the  operation  of  the  prior  section.  It  is  inferable  from 
the  opinions  expressed  in  Haight  v.  Hayt,  19  N.  Y.  464,  that 
the  court  there  supposed  that  the  words  "property  rights  or  in- 
terests," as  used  in  the  statute,  covered  and  included  all  in- 
juries tortiously  inflicted  by  one  person  to  the  detriment  of  an- 
other, whether  affecting  his  person  or  property,  and  also  that 
the  mention  of  certain  actions  in  the  second  section  manifested 
an  intention  on  the  part  of  the  law  makers  to  exempt  all  others, 
founded  on  tort  from  abatement  by  death.  The  views  expressed 
on  those  questions  seem  to  have  been  unnecessary,  as  the  aetiou 


NEGLIGENCE.  435 

there,  was  for  a  fraudulent  representation  with  respect  to  incum- 
brances, whereby  a  purchaser  of  land  at  a  public  sale  was  in- 
duced, and  the  purchaser  was  compelled  to  pay  an  incumbrance 
which  he  was  led  to  believe  did  not  exist.  The  injury  thus 
seems  clearly  to  have  been  one  to  rights  of  property  alone  and 
was  saved  from  abatement  by  the  first  section  of  the  statute. 
The  language  and  structure  of  these  sections  would  seem  to 
repel  the  idea  that  the  exemptions  provided  by  the  second  sec- 
tion were  intended  to  authorize  the  survival  of  all  other  actions 
for  tort.  In  the  view  implied  by  the  language  used  in  that  case 
the  first  section  would  be  quite  unnecessary,  as  a  provision  speci- 
fying the  classes  of  action  which  did  survive  would  be  super- 
fluous if  conjoined  with  one  enumerating  all  actions  not  sur- 
viving. Such  a  construction  gives  the  first  section  no  office  to 
perform,  and  the  courts  have  practically  rejected  this  inter- 
pretation in  numerous  cases,  holding  that  causes  of  action  abated 
by  death  which  were  not  named  in  the  second  section.  Thus 
it  has  been  held  that  a  cause  of  action  by  a  master  for  the  se- 
duction of  his  servant  does  not  survive  (People  ex  rel.  v.  Tioga 
Com.  Pleas,  19  "Wend.  73)  ;  or  for  a  fraudulent  representation 
by  a  third  person  in  reliance  upon  which  credit  is  given  to  an 
irresponsible  person  (Zabriskie  v.  Smith,  13  N.  Y.  322)  ;  or  for 
a  breach  of  a  promise  to  marry  (AVade  v.  Kalbfleisch,  58  id.  286)  ; 
or  for  damages  occasioned  by  the  negligent  killing  of  another 
(Whitford  v.  Panama  R.  R.  Co.,  23  id.  465)  ;  or  for  a  penalty 
incurred  by  trustees  under  the  General  Manufacturing  Act 
(Stokes  V.  Stiekney,  96  id.  323)  ;  and  for  fraud  in  inducing  one 
to  marry  another  (Price  v.  Price,  75  id.  244). 

The  statute  obviously  created  a  great  change  in  the  law  and 
applied  to  a  numerous  class  of  cases  which  had  not  before  been 
held  to  sur^dve.  Thus  it  enlarged  the  rights  created  by  the  act 
of  4  Edward  TIL,  so  as  to  include  actions  for  trespass  de  bonis 
asportatis  against  representatives  as  well  as  by  them,  and  re- 
moved the  limfltation  which  authorized  other  actions  for  A\Tongs 
against  representatives  only  when  the  estate  of  their  testator 
or  intestate  was  benefited  by  the  act  complained  of.  The  change 
is  illustrated  by  the  ease  of  Benjamin's  Exrs.  v.  Smith,  17  Wend. 
208.  where  it  was  held  that  the  cause  of  action  accruing  to  a 
party  against  a  sheriff  for  a  false  return  did  not  abate  by  the 
plaintiff's  death.  This  had  previously  been  held  otherwise. 
(.People  V.  Gibbs,  supra.)     In  People  v.  Tioga  Com.  Pleas,  19 


436  DAMAGES   IN    ACTIONS    FOR    WRONGS. 

Wend.  73,  it  was  held  that  such  actions  alone  as  survived  to 
executors  and  administrators  were  assignable,  and  that  a  cause 
of  action  by  a  master  for  the  seduction  of  his  servant  was  not 
assignable. 

Although  this  action  is  based  upon  the  theory  of  a  loss  of 
service  by  the  master,  it  must  inferentially  have  been  deter- 
mined that  it  did  not  affect  the  property  rights  or  interests  of 
the  master,  in  such  manner  as  to  cause  the  right  of  action  to 
survive.  Grover,  J.,  in  Haight  v.  Ilayt,  said  "that  the  statute 
had  changed  the  law  so  far  as  property  or  relative  rights  are 
affected  b,y  the  wrongful  act."  Judge  Rapallo  has  said  that 
"the  rights  and  interests  for  tortious  injuries  to  which  this  stat- 
ute preserves  the  right  of  action  have  frequently  been  consid- 
ered, and  it  is  generally  conceded  that  they  must  be  pecuniary 
rights  or  interests  by  injuries  to  which  the  estate  of  the  deceased 
is  diminished."     (Cregin  v.  B.  C.  R.  R.  Co.,  75  N.  Y.  194.) 

Reference  to  the  law  as  it  stood  previous  to  the  revision  (and 
the  application  of  the  rule  of  construction  embodied  in  the 
maxim  of  noscitur  a  sociis)  would  seem  to  require  such  an  in- 
terpretation of  the  words  "property  rights  or  interests"  as  will 
confine  their  application  to  injuries  to  property  rights  only,  and 
such  as  were  theretofore  enforceable  by  the  deceased. 

It  is  stated  in  1  Wms.  on  Exrs.  677,  "that  no  action  is  main- 
tainable by  the  executor  or  administrator  upon  an  implied  or 
express  promise  to  the  deceased  when  the  damage  consisted 
entirely  in  the  personal  suffering  of  the  deceased  without  any 
injury  to  his  personal  estate."  Chamberlain  v.  "Williamson,  2 
M.  &  S.  408,  is  cited  in  support  of  this  proposition.  In  that 
ease  Lord  Ellenborough  said :  '^•' 

"Executors  and  administrators  are  the  representatives  of  the 
personal  property,  that  is  the  debts  and  goods  of  the  deceased ; 
but  not  of  their  wrongs  except  when  those  wrongs  operate  to 
the  temporal  injury  of  their  personal  estate."  Accordingly  it 
was  there  held  "that  an  executor  or  administrator  cannot  have 
an  action  for  a  breach  of  promise  of  marriage  to  the  deceased 
when  no  special  damage  to  the  personal  estate  can  be  stated  on 
the  record.  So  with  respect  to  injuries  affecting  the  life  and 
health  of  the  deceased,  all  such  as  arise  out  of  the  unskilfulness 
of  medical  practitioners,  the  imprisonment  of  the  party  brought 
on  by  the  negligence  of  his  attorney,  such  cases  being  in  sub- 
stance actions  for  injuries  to  the  person." 


NEGLIGENCE.  437 

This  view  of  the  law  was  approved  in  a  similar  case  in  this 
court.  (Wade  v.  Kalbfleisch,  supra.)  It  was  said  in  People  v. 
Tioga  Com.  Pleas,  (supra),  by  Cowen,  J.,  that  the  cases  in  re- 
spect to  executors  and  insolvent  assignees,  and  the  like,  certainly 
go  very  far  to  direct  what  we  are  to  consider  matter  of  prop- 
erty or  estate,  so  far  that  it  can  be  touched  by  a  contract,  and 
made  a  subject  of  transfer  between  parties  in  any  way  at  law 
or  in  equity ;  if  the  right  be  not  so  entirely  personal  that  a  man 
cannot  by  any  contract  place  it  beyond  his  control,  it  is  assign- 
able under  the  statutes  of  insolvency,  or  will,  on  his  death,  pass 
to  his  executors.  The  reason  is  because  it  makes  a  part  of  his 
estate;  it  is  matter  of  property,  and  as  such  it  is  in  its  nature 
assignable.  On  the  contrary,  if  it  be  strictly  personal,  it  is  be- 
yond the  reach  of  contract.  In  the  same  sense  we  say  of  many 
rights  they  are  inalienable.  No  one  would  pretend  that  a  man's 
person  could  be  specifically  affected  by  contract ;  though  he 
should  bind  himself  by  indenture,  equity  could  not  enforce  the 
agreement.  (  Mary  Clark's  lease,  1  Blackf.  122.)  So  of  a  man's 
absolute  personal  rights  in  general,  as  his  claim  to  safety  from 
violence,  and  his  relative  rights  as  a  husband,  a  father,  a  master, 
a  trustee,  etc."  This  case  was  approved  in  McKee  v.  Judd,  12 
N.  Y.  622,  and  it  was  there  said  by  Grover,  J.,  that  ''demands 
arising  from  injuries  strictly  personal,  whether  arising  upon 
tort  or  contract,  are  not  assignable;  but  that  all  others  are." 
In  Green  v.  Hudson  R.  R.  R.  Co.,  28  Barb.  9,  approved  in  Whit- 
ford  V.  Panama  R.  R.  (supra),  it  was  held  that  the  husband 
at  common  law  could  not  maintain  an  action  for  negligence  caus- 
ing the  death  of  his  wife ;  and  that  continued  to  be  the  law 
in  this  State  until  the  act  of  1847  was  amended  by  chapter  78 
of  the  laws  of  1870.  It  was  said  by  Judge  Denio  in  Whitford 
V.  Panama  R.  R.  Co.,  (supra),  "It  has  never  been  suggested, 
so  far  as  I  know,  that  the  personal  representatives  of  a  deceased 
person  could  at  the  common  law  sustain  an  action  on  accoimt  of 
the  wrongful  act  of  another,  which  caused  the  death  of  the  per- 
son whose  estate  they  represent."  It  would  seem  unnecessary 
to  cite  additional  authorities  to  the  effect  that  as  the  law  stood  at 
the  adoption  of  the  statute,  neither  a  husband  nor  wife  had 
such  an  interest  in  the  life  of  their  respective  consorts  as  sub- 
jected a  person,  through  whose  negligent  act  it  was  taken,  to 
the  charge  of  injuring  any  property  rights  possessed  by  them. 

From  the  same  review,  it  is  quite  evident  that  the  authors  of 


438  DAMAGES    IN    ACTIONS    KOK    WRONGS, 

the  statute  intended  explicitly  to  provide  for  tiie  abatement  of 
causes  of  aetion  for  personal  injuries  occurring  to  the  plaintiff, 
or  to  his  intestate  or  testator.  The  assignability  and  surviva- 
bility of  things  in  action  have  fre([uently  been  held  to  be  con- 
vertible terms,  and  perhaps  furnish  as  clear  and  intelligible  a 
rule  to  determine  what  injuries  to  property  rights  or  interests 
ai'e  meant  by  the  statute,  as  it  is  possible  to  lay  down.  People 
V.  Tioga  Co.  Com.  Pleas,  supra;  Zabriskie  v.  Smith,  supra. 

The  rights  of  property  only  which  are  in  their  nature  assign- 
able and  capable  of  enjoyment  by  an  assignee  are  those  referred 
to  in  the  statute.  Such  rights  as  arise  out  of  the  domestic  re- 
lations clearly  do  not  possess  the  attributes  of  property,  and  are 
not  assignable  by  the  possessor.    (Id.) 

The  provisions  of  the  Revised  Statutes  were,  however,  modi- 
fied by  chapter  450  of  the  laws  of  1847,  as  amended  by  subse- 
quent statutes,  giving  an  action  against  persons  and  corporations, 
to  the  representatives  of  a  deceased  person,  for  the  benefit  of 
the  husband  or  widow  and  next  of  kin,  to  recover  damages  for 
the  pecuniary  injuries  suffered  by  them  where  death  was  caused 
by  the  wrongful  act,  neglect  or  default  of  another  and  the  act, 
neglect  or  default  was  such  as  would  (if  death  had  not  ensued) 
have  entitled  the  party  injured  to  maintain  an  action  therefor, 
and  in  respect  thereof  against  the  person  who  or  the  corpora- 
tion which  caused  the  same,  although  the  death  was  caused  un- 
der such  circumstances  as  in  law  amounted  to  a  felony. 

We  are  now  to  consider  the  effect  which  these  statutes  pro- 
duced upon  the  law  as  it  previously  existed.  The  cause  of  ac- 
tion here  provided  for  has  been  held  not  to  be  a  devolution,  but 
a  new  one  calling  for  the  application  of  another  rule  of  dam- 
age and  distinguished  by  many  other  attributes.  Whitford  v. 
Panama  R.  R.  Co.,  supra;  Haight  v.  Hayt,  19  N.  Y.  464; 
]\IcDonald  v.  ]\Iallory,  77  id.  546;  Littlewood  v.  Mayor,  etc., 
89  id.  24;  Blake  v.  Midland  R.  R.  Co.,  18  A.  &  E.  93;  Leg- 
gott  V.  Gt.  N.  Ry.  Co.,  L.  R.  1  Q.  B.  D.  604;  Russell  v.  Sun- 
bury,  37  Ohio  St.  372;  Yertore  v.  Wiswall,  16  How.  Pr.  8. 
That  it  is  founded  upon  the  wrongful  act  of  the  party  causing 
the  death,  and  gives  a  right  of  action  therefor  to  the  represent- 
atives of  the  deceased,  for  the  pecuniary  consequences  suffered 
by  the  husband,  wife  or  next  of  kin  from  such  wrongful  act,  is 
also  established  by  the  same  authorities. 

The  cause  of  action  is  obviously  the  wrongful  act,  and  the 


NEGLIGENCE.  439 

pecuniary  injuries  resulting  afford  simply  a  rule  to  determiue 
the  measure  of  damages.  However  much  the  husband,  widow 
or  next  of  kin  may  suffer  pecuniarily  by  the  act  causing  death, 
it  constitutes  no  cause  of  action,  independent  of  evidence,  that 
it  was  occasioned  by  the  wrongful  or  negligent  conduct  of  an- 
other. Proof  that  it  occurred  in  conseciuence  of  the  contributory 
negligence  of  the  deceased  person,  or  without  the  fault  of  tlie 
defendant,  furnishes  a  perfect  answer  to  such  an  action  and  a 
conclusive  reason  why  the  death  produced  by  the  wrongful 
act  is  the  cause  of  action.  The  cause  of  action  here  provided 
for  does  not  purport  to  be  in  any  respect  a  derivative  one,  but 
is  an  original  right  conferred  by  the  statute  upon  representa- 
tives for  the  benefit  of  beneficiaries,  but  founded  upon  a  wrong 
already  actionable  by  existing  law  in  favor  of  the  party  injured, 
for  his  damages.  The  description  of  the  actionable  cause,  seems 
to  have  been  inserted  merely  to  characterize  the  nature  of  the 
act  which  is  intended  by  the  statute  to  be  made  actionable,  and 
to  define  the  kind  and  degree  of  delinquency  with  which  the 
defendant  must  be  chargeable  in  order  to  subject  him  to  the 
action.    Whitford  v.  Panama  R.  R.  Co.,  supra. 

It  will  be  observed  also  that  the  statute,  although  creating  a 
new  cause  of  action,  and  passed  for  the  express  purpose  of 
changing  the  rule  of  the  common  law  in  respect  to  the  surviv- 
ability of  actions,  and  conferring  a  right  upon  representatives 
which  they  did  not  before  possess,  does  not  undertake,  either 
expressly  or  inpliedly,  to  impair  the  equally  stringent  rule 
which  precluded  the  maintenance  of  such  actions  against  the 
representatives  of  the  offending  party. 

The  plain  implication  from  its  language  would,  therefore, 
seem  to  be  at  war  with  the  idea  that  the  legislature  intended 
to  create  a  cause  of  action  enforceable  against,  as  well  as  by 
representatives.  The  cause  of  action  thereby  given  is  not  to 
the  estate  of  the  deceased  person,  but  to  his  or  her  representa- 
tives as  trustees,  not  for  purposes  of  general  administration,  but 
for  the  exclusive  use  of  specified  beneficiaries.  Dickins  v.  N.  Y. 
Cent.  R.  R.  Co.,  23  N.  Y.  158;  Yertore  v.  Wiswall,  16  How. 
Pr.  8. 

The  wrong  defined  indicates  no  injury  to  the  estate  of  the 
person  killed,  and  cannot  either  logically  or  legally  be  said  to 
affect  any  property  rights  of  such  person,  unless  it  can  be  main- 
tained that  a  person  has  a  property  right  in  his  own  existence. 


440  DAMAGES    IN    ACTIONS   FOR    WRONGS. 

The  property  right,  therefore,  created  by  this  statute  is  one 
existing  in  favor  of  the  beneticiaries  of  a  recovery  only,  and 
depends  for  its  existence  upon  the  death  of  the  party  injured. 
It  had  no  previous  life  and  cannot  be  said  to  have  been  injured 
by  the  very  act  which  creates  it.  Whatever  claim  a  wife  or 
children  have  at  law  upon  the  husband  and  father  for  support 
perislies  with  the  life  of  such  person,  and  thereafter  their  claims 
upon  his  estate  are  governed  by  statutory  rules. 

If,  therefore,  we  consider  this  cause  of  action  as  a  property 
right,  it  is  as  such,  a  right  based  upon  a  tort,  and,  except  as 
otherwise  provided  by  the  statute  creating  it,  must  be  governed 
by  the  existing  rules  of  law  applicable  to  such  causes  of  action. 
The  case  of  Littlewood  v.  Mayor,  etc.,  89  N.  Y.  24,  holding  that 
such  causes  of  action  may  be  settled  and  discharged  by  the 
injured  party  during  his  life-time,  would  seem  to  preclude  the 
idea  that  the  husband  or  widow  and  next  of  kin  had  any  right 
of  property  in  the  cause  of  action  created  by  the  death  of  the 
party  injured  during  his  life-time.  The  question  presented  by 
the  decision  herein  was,  we  think,  determined  adversely  to  the 
plaintiff  by  the  case  of  Cregin  v.  Brooklyn  Crosstown  R.  R.  Co., 
75  N.  Y.  192.  It  was  there  held  when  an  injury  is  done  to  the 
person  of  the  plaintiff  (and  necessarily,  by  the  terms  of  the  stat- 
ute, to  that  of  his  testator  or  intestate),  "that  the  pecuniary 
damage  sustained  thereby  cannot  be  so  separated  as  to  consti- 
tute an  independent  cause  of  action,  for  the  cause  of  action  is 
single  and  consists  of  the  injury  to  the  person.  The  damages 
are  the  consequences  merely  of  that  injury,  and  when,  by  the 
terms  of  the  statute,  such  a  cause  of  action  abates,  the  charac- 
ter of  the  damages  cannot  save  it."  The  conclusions  reached 
in  that  case  tend  necessarily  to  support  the  doctrine  that  the 
causes  of  action  given  by  the  act  of  1847  and  its  amendments 
abate  by  the  death  of  the  person  injured.  It  also  holds  that, 
so  far  as  the  personal  estate  and  rights  of  property  of  the  de- 
ceased person  are  injured  by  the  wrongful  act  causing  death, 
the  cause  of  action  therefor  survives  to  his  representatives  by 
force  of  section  1  of  the  Revised  Statutes,  before  referred  to. 
Such  an  action  exists  independently  of  the  Statute  of  1847,  and 
has  been  upheld  in  favor  of  representatives  to  the  extent  of 
giving  damages  for  medical  attendance  and  inability  of  the  in- 
jured party  to  attend  to  business,  for  the  time  intermediate  his 
injury   and  death,   when   the   accident   occurred   while   travel- 


NEGLIGENCE.  441 

ing  as  a  passenger  upon  the  defendant's  railroad.  The  action 
was  there  based  upon  the  theory  of  a  breach  of  contract  to 
carry  the  passenger  safely.  Bradshaw  and  wife  v.  Lancashire 
&  Yorkshire  Ry.  Co.,  L.  R.  10  C.  P.  189. 

We  have  carefully  considered  the  case  of  Needham  v.  Grand 
T.  R.  R.  Co.,  38  Vt.  294,  but  inasmuch  as  the  statutes  in  that 
State  affecting  the  question  are  so  different  from  our  own,  little 
analogy  exists  between  the  question  there  presented  and  the 
one  under  consideration.  The  case  of  Yertore  v.  Wiswall, 
(supra)  is  entitled  to  great  respect  from  the  learning  and  ability 
of  the  court  by  which  it  was  decided.  But,  although  agreeing 
with  some  of  the  propositions  entertained  by  it,  we  are  unable 
to  concur  in  the  conclusion  reached,  that  the  cause  of  action 
there  considered,  survived. 

The  complaint  in  the  present  action  describes  a  cause  of  ac- 
tion arising  out  of  the  death  alone,  and  suggests  no  injury  to 
the  estate  or  property  of  the  deceased.  Such  a  cause  of  action 
is  abated  by  the  death  of  the  wrong-doer. 

The  judgment  of  the  General  Term  should,  therefore,  be  re- 
versed, and  that  of  the  Special  Term  affirmed. 

All  concur;  Finch,  J.,  in  result. 

Judgment  accordingly. 


DENVER  &  R.  G.  R.  CO.  v.  SPENCER. 

Colorado,  1900.     27  Colo.  313. 

This  action  was  commenced  by  the  appellees  to  recover  dam- 
ages for  the  death  of  their  father,  caused  by  the  alleged  negli- 
gence of  the  appellant.  From  a  verdict  and  judgment  in  their 
favor  the  defendant  appeals. 

Gabbert,  j.  *  *  *  The  final  question  relates  to  the 
amount  of  damages  assessed  by  the  jury.  The  verdict  was 
in  the  sum  of  $4,000,  which  appellant  contends  is  excessive. 
The  right  of  appellees  to  maintain  this  action  is  purely  statutory. 
It  did  not  exist  at  common  law.  The  damages  which  they  are 
entitled  to  recover  must  be  limited  to  those  of  a  compensatory 
character— in  other  words,  to  such  pecuniary  damages  as  they 
have  sustained  by  reason  of  the  death  of  their  father.  As  aptly 
stated  by  the  late  Justice  Elliott  in  Pierce  v.  Conners,  20  Colo. 


442  DAMAGES   IN    ACTIONS    FOR    WRONGS. 

ITS:  "Tlio  ti'uc  luoasnro  of  eompensatoiy  relief  in  an  action  of 
this  kind,  uiuler  the  act  of  1877,  is  a  sum  equal  to  the  net  pecuni- 
ary benelit  which  plaiiititf  might  reasonably  have  expected  to  re- 
ceive from  the  deceased  in  case  his  life  had  not  been  terminated 
by  the  wrongful  act,  neglect,  or  default  of  defendant ;  *  *  * 
but  it  must  be  borne  in  mind  that  the  recovery  allowable  is  in 
no  sense  a  solatium  for  the  grief  of  the  living,  occasioned  by 
the  death  of  the  relative  or  friend,  however  dear.  It  is  only  for 
the  pecuniary  loss  resulting  to  the  living  party  entitled  to  sue, 
resulting  from  the  death  of  the  deceased,  that  the  statute  affords 
compensation.  This  may  seem  cold  and  mercenary,  but  it  is  un- 
questionably the  law." 

At  the  time  of  his  death  his  wife  was  living,  and  survived 
him  about  two  j'ears.  The  appellees  were  in  no  manner  depend- 
ent upon  him  for  support.  The  mere  relationship  between  them 
and  deceased  cannot  be  made  the  basis  of  a  recovery  in  this 
ease,  however  much  they  may  have  grieved  over  his  untimely 
death.  Therefore,  as  stated  in  the  former  opinion  in  this  case, 
"the  pecuniary  loss,  if  any,  that  resulted  to  them  by  reason  of 
the  death,  was  in  being  deprived  of  their  share  of  the  money  that 
he  might  accumulate  during  his  expectancy  of  life."  Or,  under 
the  evidence,  their  recovery  must  be  limited  to  the  sum  which 
the  father,  by  his  personal  exertions,  less  his  necessary  personal 
expenses,  and  those  of  his  wife  during  her  life,  would  have 
added  to  his  estate,  and  which  would  have  descended  to  the  ap- 
pellees, as  his  heirs  at  law.  The  court  so  instructed  the  jury. 
Was  this  instruction  followed?  At  the  time  of  his  death,  de- 
ceased was  upward  of  sixty-eight  years  of  age.  His  expectancy 
of  life  was  about  nine  and  one-half  years.  There  is  testimony 
to  the  effect  that  at  the  time  of  his  death  his  annual  income, 
arising  from  his  personal  exertions,  after  deducting  his  per- 
sonal expenses,  equaled  the  sum  of  about  $1,000  per  annum, 
although  the  evidence  is  not  entirely  satisfactory  upon  this  point, 
for  the  reason  that  the  witness  testifying  on  this  subject  was 
not  certain  that  he  was  fully  advised  regarding  the  personal 
expenditures  of  the  father.  The  money  earned  by  deceased  from 
this  source  consisted  of  a  salary  of  $1,500  per  annum  as  an  em- 
ploye of  a  bank,  and  about  $500  more  per  annum,  earned  as  a 
conveyancer  and  notary,  in  connection  with  his  bank  duties.  He 
had  considerable  income  from  investments,  but  this  cannot  be 
considered,  in  estimating  his  annual  savings.    We  mention  this, 


NEGLIGENCE.  443 

however,  because  it  appears  that  his  net  worth  at  the  time  of 
his  death  could  not  have  been  so  very  much  in  excess  of  the  value 
of  his  bank  stock,  which  was  $6,400,  because  it  appears  that  his 
other  investments  were  incumbered  in  such  an  amount  that, 
after  deducting  interest,  there  was  but  little  left  in  the  way  of 
income  from  these  sources,  after  payment  of  taxes.  Had  he  lived 
the  full  term  of  his  expectancy,  and  during  that  period  been  able 
-at  all  times  to  continue  to  engage  in  the  work  in  which  he  was 
employed  at  the  time  of  his  death,  his  net  personal  earnings  would 
have  exceeded  much  more  than  the  damages  awarded.  It  can- 
not be  fairly  assumed,  however,  or  expected,  that,  at  his  advanced 
age,  he  would  have  continued  to  labor  during  all  the  future  years 
of  his  life.  In  considering  this  question,  account  should  be  taken 
of  his  liability  to  illness,  his  incapability  of  further  exertions  by 
reason  of  age,  and  that  he  might,  on  account  of  his  years,  con- 
clude to  retire  from  active  work;  that,  in  all  probability,  his 
age  would  soon  incapacitate  him  from  discharging  his  duties 
as  an  employe  in  the  bank,  in  which  he  was  engaged;  that,  if 
he  did  continue  to  earn  money  for  a  portion  of  his  expectancy  of 
life,  he  would  at  least  expend  a  part  so  earned  for  personal  use 
during  the  remaining  years.  All  these  are  contingencies  which 
must  be  considered.  Necessarily,  the  ascertainment  of  damages, 
dependent  upon  a  variety  of  circumstances  and  future  con- 
tingencies, is  difficult  of  exact  computation;  but,  nevertheless, 
they  cannot  be  presumed  and  arbitrarily  given.  Undoubtedly 
much  latitude  must  be  given  a  jury  in  cases  of  this  character,  but 
there  must  be  some  basis  of  facts  upon  which  to  predicate  a 
finding  of  substantial  pecuniary  loss.  Diebold  v  Sharp,  49  N, 
E.  Rep.  837. 

Except  for  the  statute,  appellees  could  not  maintain  this  ac- 
tion. Its  provisions  are  beneficent,  but  limited.  In  no  case  un- 
der it  can  damages  exceed  the  sum  of  $5,000.  Taking  into  con- 
sideration the  evidence  upon  which  the  award  of  damages  is 
based  in  this  case,  the  contingencies  to  which  we  have  directed 
attention,  the  improbability  that  deceased,  during  the  remaining 
years  of  his  life,  would  have  saved  from  net  personal  earnings  a 
sum  anywhere  nearly  approximating  the  damages  awarded,  and 
the  disproportion  of  that  sum  to  his  previous  accumulations,  it 
is  evident  that  the  jurors  certainly  failed  to  consider  the  in- 
structions of  the  court  on  the  subject  of  damages,  but  must  have 
been  influenced  by  considerations  other  than  those  which  the 


4-i4  DAMAGES   IN   ACTIONS  FOR   WRONGS. 

law  recognizes  as  elements  of  damages  in  such  cases.  For  these 
reasons,  the  judgment  of  the  district  court  is  reversed  and  the 
cause  remanded  for  a  new  trial. 

Reversed  and  remanded. 


BROUGHEL  v.  SOUTHERN  NEW  ENG.  TEL.  CO. 

Connecticut,   1901.     73  Conn.  614. 

Action  to  recover  damages  for  instantaneous  death  through 
defendant's  negligence. 

Torrance,  J.  The  important  questions  upon  this  appeal  are 
these:  (1)  Under  our  statutes  relating  to  death  by  wrongful 
act,  can  there  be  a  recovery  of  substantial  damages  for  mere  loss 
of  life  alone?  (2)  If  so,  what  is  the  measure  of  damages  in  such 
case?     These  questions  will  be  considered  in  the  order  stated. 

When  this  case  was  before  this  court  in  another  aspect  of  it, 
one  of  the  points  decided  was  that  the  mere  fact  that  death  was 
instantaneous,  and  without  pain  or  suffering  of  any  kind,  did 
not  of  itself  prevent  the  recovery  of  substantial  damages. 
Broughel  v.  Telephone  Co.,  72  Conn.  617.  In  effect,  that  case, 
we  think,  decides  the  first  question  against  the  contention  of  the 
defendants.  It  was  found  by  the  trial  court  in  that  case  that 
death  was  the  sole  and  only  consequence  of  the  negligent  act, 
and  yet  it  was  decided  that  the  plaintiff  was  entitled  to  recover 
substantial  damages  for  that  consequence.  That  decision  can 
only  be  supported  on  the  theory  that  under  our  statutes  of  the 
kind  here  in  question  damages  may  be  recovered  for  the  mere 
loss  and  deprivation  of  life  alone,  for  in  that  case  it  was  found 
that  no  other  consequence  save  mere  loss  of  life  followed  from 
the  negligent  act.  A  negligent  act  causing  death  is  an  invasion 
of  the  right  to  life,  the  first  and  highest  of  all  rights, 
on  which  all  others  are  based.  That  act  may  be  attend- 
ed by  divers  consequences  and  effects.  It  may  be  followed 
— as  it  is  found  it  was  in  the  present  case — by  death  alone,  in- 
stantly and  painlessly;  or  it  may  be  followed  by  bodily  and 
mental  suffering  and  agonj^  as  well  as  by  death.  We  think  our 
statutes  make  the  wrongdoer  in  such  cases  liable  in  damages  to 
the  executor  or  administrator  of  the  decedent  for  any  and  all 
such  consequences,  and  among  them  for  the  mere  loss  and  de- 


NEGLIGENCE.  445 

privation  of  life.  For  such  consequences  he  is  to  pay  "just  dam- 
ages," not  exceeding  a  prescribed  amount.  This  view  of  this 
matter  was  the  one  taken  in  Murphy  v.  Railroad  Co.,  30  Conn. 
184.  This  court  there  said:  "If  to  take  one's  liberty  or  one's 
property  without  justification  is  an  injury,  how  much  more  is 
the  taking  of  human  life  ?  The  elementary  books,  in  speaking  of 
absolute  rights,  classify  them  thus:  (1)  The  right  of  personal 
security;  (2)  the  right  of  personal  liberty;  and  (3)  the  right 
to  acquire  and  enjoy  property.  If  these  rights  are  valued  in  this 
order  of  preference,  then  every  man  of  common  understanding 
would  at  once  pronounce  it  absurd  to  hold  that  it  is  no  injury  to 
a  person  to  take  his  life,  while  it  is  to  strike  him  a  light  blow. 
Such  a  distinction  is  not  worth  talking  about,  and  has  no  found- 
ation or  existence  in  the  law,  as  it  has  none  in  common  sense." 
In  the  legislation  of  this  state,  statutes  making  wrongdoers  liable 
in  damages  for  mere  loss  of  life  have  been  quite  common.  The 
first  printed  edition  of  the  statutes  contained  a  provision  of  this 
kind.  It  was  therein  provided  that,  "if  any  person  shall  lose 
his  life"  by  means  of  a  defective  bridge  or  highway  imder  cer- 
tain circumstances,  the  wrongdoer  should  pay  "to  the  parents, 
husband,  wife,  or  children,  or  next  of  kin  to  the  person  de- 
ceased," the  sum  of  $334,  to  be  recovered  in  an  action  at  law. 
Revision  1808,  p.  120.  In  1851  an  act  was  passed  providing  that, 
"if  any  person  shall  be  deprived  of  life"  in  consequence  of  cer- 
tain acts  or  omissions  of  the  servants  of  any  railroad  company, 
such  company  should  pay  to  the  parties  named  in  the  act  the 
sum  of  $1,000,  to  be  recovered  in  an  action  of  debt  on  the  statute. 
Pub.  Acts  1851,  c.  43.  In  1853  an  act  was  passed  providing 
that,  if  the  life  of  any  person  "shall  be  lost"  under  certain  pre- 
scribed circumstances  by  reason  of  the  negligence  of  a  railroad 
company,  such  company  should  be  liable  to  pay  damages  not  ex- 
ceeding $5,000  nor  less  than  $1,000  to  the  person  described  in 
the  act.  Pub.  Acts  1853,  c.  74.  In  1869  an  act  was  passed 
providing  that,  if  the  life  of  any  person  "shall  be  lost"  by  the 
neglect  of  a  railroad  company  to  maintain  fences  as  prescribed 
in  the  act,  such  company  should  be  liable  to  pay  damages  not 
exceeding  $5,000  to  the  persons  named  in  the  act.  Pub.  Acts 
1869,  c.  48.  In  1877  a  general  act  was  passed  providing  that  for 
injuries  "resulting  in  death"  from  negligence  "the  party  legally 
in  fault  for  such  injuries"  should  be  liable  for  "just  damages, 
not  exceeding  five  thousand  dollars."     Pub.    Acts  1877,  c.  78, 


44G  DA-MAGKtf    IM    A(JTiO>.;5    FOK    WRONGS. 

These  and  other  acts  of  a  kindred  nature,  as  they  existed  at  the 
time  of  the  Kevision  of  1888,  were  embodied  in  seetions  1008  and 
1009  of  that  revision,  and  it  was  under  the  provisions  of  these 
sections  that  the  present  suit  was  brought.  This  legislation 
clearly  shows  an  intent  to  make  wrongdoers  iu  certain  cases,  and 
under  certain  limitations,  liable  in  damages  for  mere  loss  or 
deprivation  of  life;  and  there  is  nothing  in  any  legislation 
prior  or  subsequent  to  1888  that  indicates  an  intent  on  the  part 
of  the  legislature  to  exempt  such  wrongdoers  from  such  liability. 
We  are  not  aw'are  of  any  decision  of  this  court  that  is  inconsistent 
with  the  view  here  taken  of  the  legislation  in  question,  and  we 
are  satisfied  that  it  is  the  correct  one. 

The  next  question  relates  to  the  measure  of  damages  for  mere 
loss  of  life.  So  far  as  we  are  aware,  this  question,  in  the  precise 
form  in  which  it  is  now  presented,  has  not  before  been  passed  up- 
on by  this  court,  and  we  are  at  liberty  to  decide  it  upon  prin- 
ciple. It  is  probably  true,  in  point  of  fact,  that  in  suits  here- 
tofore brought  in  this  state  for  injuries  resulting  in  death  from 
wrongful  act  the  value  of  the  life  of  the  deceased  has,  with 
other  elements,  entered  into  the  award  of  damages ;  but,  if  so, 
that  element  has  not  been,  so  far  as  we  are  aware,  separately  dis- 
cussed or  considered  by  this  court.  The  statutes  upon  this  sub- 
ject do  not,  in  terms,  at  least,  furnish  any  guide  in  this  matter. 
They  merely  provide  that  the  wrongdoer  in  such  cases  shall  pay 
"just  damages,"  not  exceeding  $5,000.  There  are,  however, 
certain  considerations  arising  out  of  the  nature  and  character 
of  this  kind  of  legislation  in  our  state,  and  out  of  the  nature  of 
death  as  one  of  the  harmful  consequences  of  an  injury,  that  may 
serve  as  guides  in  coming  to  a  right  concliLsion  in  this  matter. 
From  the  beginning  our  legislation  of  this  kind  w^as  intended  to 
subserve  at  least  two  purposes:  (1)  It  was  designed  to  make 
persons  and  corporations  whose  negligence  might  injuriously 
affect  the  lives  and  limbs  of  others  more  careful  and  circumspect, 
by  continuing  their  liability  for  the  results  of  their  negligence 
even  after  the  death  of  the  victim,  and  by  making  them  liable 
in  damages,  to  a  limited  extent,  for  death,  as  one  of  the  conse- 
quences of  that  negligence.  In  this  aspect  of  it,  this  legislation 
may  be  said  to  be  of  a  punitive  or  penal  character.  Connecticut 
Mut.  Life  Ins.  Co.  v.  New  York  &  N.  H.  R.  Co.,  25  Conn.  265, 
273.  (2)  This  legislation  was  also  and  mainly  designed  to  make 
some  compensation  in  money  for  mere  loss  of  life,  which  com- 


NEGLIGENCE.  447 

pensation,  as  part  of  the  estate  of  the  injured  party,  should 
go  to  certain  designated  persons;  not  full  compensation  of  this 
kind  for  such  a  consequence,  but  "just  damages,"  not  exceeding 
a  prescribed  amount.  In  this  last  aspect  of  it  this  legislation 
plainly  contemplates  that  the  extent  of  such  loss  may  be  greater 
in  one  case  than  another ;  or,  to  put  this  in  a  different  way,  that 
the  value  of  the  life  to  the  injured  party — or,  what  is  the  same 
thing,  to  his  estate — in  terms  of  money  may  be  greater  in  one 
case  than  in  another.  Under  our  decisions  the  loss  of  life  is  not 
to  be  estimated  from  the  standpoint  of  the  statutory  beneficiaries. 
Their  loss,  if  any,  arising  from  the  death  cannot  be  taken  into 
account.  Goodsell  v.  Railroad  Co.,  33  Conn.  51 ;  McEUigott  v. 
Randolph,  61  Conn.  157.  This  being  so,  the  only  other  thing 
that  can  be  done  is  to  estimate  the  loss  from  the  standpoint  of 
the  party  injured,  and  thus,  in  a  sense,  take  the  value  of  hia 
life  to  him  as  one  of  the  elements  in  measuring  the  damages.  But 
in  what  sense  shall  the  value  of  his  life  to  him  be  taken  as  such 
an  element  ?  Shall  it  be  what  the  man  thought  or  imagined  his 
life  was  worth  to  him;  that  is,  what  a  man  would  take  in  ex- 
change for  his  life  ?  Clearly  not.  In  that  aspect  of  the  injury 
there  can  be  no  measure  for  it,  because  a  man's  life  to  himself, 
no  matter  what  his  age,  or  condition  of  health,  or  expectancy  of 
life  may  be,  outweighs  in  value  the  universe.  In  that  sense  it  is 
folly  to  talk  of  the  value  of  any  life  being  worth  less  than  the 
maximum  sum  prescribed  by  the  statutes.  Our  statutes,  in 
providing  compensation  in  part  for  death  alone  as  the  conse- 
quence of  a  negligent  act,  do  not  proceed  upon  any  such  view  of 
the  value  of  life  as  this,  else  would  they  have  provided  for  a  fixed 
sum  as  damages  in  each  case ;  but  they  proceed,  in  part  at  least, 
upon  the  theory  that  a  loss  of  earning  capacity  by  death  is  a  loss 
to  a  man's  estate,  which  may  be  greater  or  less  according  to  cir- 
cumstances, and  so  within  a  maximum  limit  a  sliding  scale  of 
damages  is  provided.  Under  these  statutes  the  right  to  re- 
cover a  limited  compensation  for  death  alone  as  one  of  the  re- 
sults or  consequences  of  a  wrong  inflicted  upon  a  man  in  his 
lifetime  survives  to,  or  is  vested  in,  his  executors  or  administra- 
tors for  the  benefit  of  certain  designated  beneficiaries,  and  is 
thus  in  a  certain  sense  made  a  part  of  his  estate,  regarded  as 
that  aggregate  of  rights  and  possessions  which  a  man  leaves  at 
his  death.  This  legislation  seems  to  regard  the  life  of  the  person 
iniured  as  having  a  greater  or  less  value,  according  to  circum- 


448  DAMAGES    IN    ACTIONS    FUK    WRONGS. 

stances,  to  him,  or,  what  is  the  same  thing  in  this  connection, 
to  his  estate;  and  one  of  its  objects  in  awarding  damages  for 
mere  loss  of  life  is  to  compensate  his  estate,  in  the  sense  above 
explained,  for  that  loss;  and  in  cases  like  the  present  that  loss, 
thus  measured,  may  be  the  chief  or  only  element  to  be  consid- 
ered in  fixing  the  extent  of  the  defendant 's  liability.  We  do  not 
mean  to  say  that  this  would  be  the  only  element  to  be  considered 
in  cases  'like  the  one  at  bar,  but  only  that  ordinarily  in  them 
it  might  or  would  be  the  principal  element.  It  is  unnecessary 
here  to  decide  what  other  elements,  if  any,  may  properly  be  con- 
sidered in  such  cases,  for  we  think  the  trial  court  took  as  the 
measure  of  damages  in  this  case  the  loss  to  the  estate  of  Davis 
in  the  sense  above  explained,  and  it  does  not  appear  that  in 
fixing  the  quantum  of  damages  it  considered  any  other  element. 
It  is  true,  the  court  says  that  it  took  as  the  measure  of  damages 
"the  value  of  the  deceased's  life,  at  the  time  of  the  injuries,  to 
himself;"  and  it  is  true  that  this  language  is  somewhat  am- 
biguous. It  may  mean  that  the  cpurt  took  as  the  measure  of 
damages  what  a  man  would  take  in  exchange  for  his  life,  or  it 
may  mean  that  the  court  measured  the  damages  by  the  loss  to 
the  estate  of  the  decedent  in  the  sense  above  explained.  We 
think  this  last  is  what  the  court  did,  and  what  it  meant  to  say 
it  did,  for  it  heard,  and,  we  are  bound  to  presume,  considered, 
evidence  which  it  would  neither  have  heard  nor  considered  if  it 
had  proceeded  upon  the  other  view  of  the  extent  of  the  loss.  But 
it  is  said  that  a  loss  of  this  kind  is  too  vague,  indefinite,  and 
uncertain  to  be  estimated  pecuniarily,  and  is,  in  its  nature,  in- 
capable of  judicial  determination.  AVe  think  there  is  nothing  in 
this  claim.  Injuries,  in  the  sense  of  Avrongful  invasions  of  a 
right,  may  be  considered  as  of  two  kinds:  (1)  Pecuniary,  and 
(2)  nonpecuniary.  Pecuniary  injuries  are  such  as  can  be,  and 
usually  are,  without  difficulty  estimated  by  a  money  standard. 
Loss  of  real  or  personal  property  or  of  its  use,  loss  of  time,  and 
loss  of  services,  are  examples  of  this  class  of  injuries.  Non- 
pecuniary  injuries  are  those  for  the  measurement  of  which  no 
money  standard  is  or  can  be  applicable.  As  the  books  phrase  it, 
damages  in  such  cases  are  "at  large."  Bodily  and  mental  pain 
and  suffering  are  familiar  examples  of  this  class.  It  is  within 
this  last  class  that  injury  arising  from  loss  of  life  under  our 
statutes  falls.  Thero  is  no  more  legal  difficulty  in  estimating 
damages  for  loss  of  life  in  cases  like  the  present  than  there  is 


NEGLIGENCE.  449 

in  estimating  damages  for  bodily  or  mental  pain  and  suffering, 
or  for  maim  or  disfigurement,  or  for  injured  feelings;  and 
yet  damages  for  this  sort  of  injury  are  being  constantly  esti- 
mated and  awarded  by  the  courts  in  proper  cases.  The  difficulty, 
or  even  impossibility,  of  estimating  with  certainty  in  money  the 
amount  of  injury  in  this  class  of  cases  is  never  considered  a 
reason  for  refusing  redress.  Cook  v.  Bartholomew,  60  Conn.  26 ; 
Post  V.  Railway  Co.,  72  Conn.  362;  Railroad  Co.  v.  Allen,  53 
Pa.  276 :  Ballon  v.  Famum,  11  Allen,  73.  In  the  view  we  have 
taken  of  this  case,  the  rulings  upon  evidence  of  which  the  defend- 
ant complains  were  correct,  and  the  rulings  upon  the  claims  of 
law  made  by  the  defendant  were  also  correct.  There  is  no  error. 
The  other  judges  concurred. 


SMITH  V.  LEHIGH  VALLEY  R.  CO. 

New  York,  1904.     177  N.  Y.  379, 

Action  by  Porter  D.  Smith,  administrator  of  Amy  A.  Smith, 
against  the  Lehigh  Valley  Railroad  Company,  to  recover  dam- 
ages for  the  death  of  plaintiff's  intestate, 

Parker,  C.  J.     *     *     * 

We  are  also  of  the  opinion  that  the  court  erred  in  admitting  in 
evidence  the  photograph  of  deceased.  The  action  was  to  re- 
cover for  pecuniary  injuries  resulting  from  decedent's  death. 
Code  Civ.  Proe.  §  1904.  Such  injuries  are  to  be  compensated 
for  on  the  basis  of  the  monetary  value  of  the  services  of  deceased 
to  her  husband  and  children.  Into  such  a  case  the  personal 
element  does  not  enter,  for  the  law  does  not  compensate  for 
grief  or  sorrow,  but  only  for  the  actual  pecuniary  loss.  The  in- 
troduction in  evidence  of  the  photograph  of  a  handsome  woman 
could  not  be  expebted  to  accomplish  any  other  result  than  to  in- 
troduce the  personal  element  for  the  consideration  of  the  jury. 
Certainly  the  language  employed  in  Lipp  v.  Otis  Brothers  &  Co., 
161  N.  Y.  559,  would  seem  to  be  applicable  to  the  introduction 
of  this  photograph:  "Clearly,  the  testimony  we  have  been  con- 
sidering could  not  render  any  service  in  the  case  other  than  to 
awaken  the  sympathies  and  thus  influence  the  judgment  of  the 
jurors  in  the  direction  of  a  greater  award,  nor  is  it  reasonable  to 
assume  that  any  other  result    was  expected  from  it."    In  that 

29 


450  DAMAGES    IN    ACTIONS   FOR    WRONGS. 

case  this  court  ivvorsed  a  jiulg^niont  obtainod  by  a  father,  as  sole 
next  of  kin,  for  pecuniary  injuries  result intij  from  his  son's  death. 
No  one  except  the  father  was  entitled  to  recover,  and  yet 
plaintiff  was  permitted  to  question  a  brother  of  deceased 
as  to  brothers,  sisters,  nephews,  and  nieces  of  deceased, 
and  their  necessities— testimony  which  pointed  out  opportunities 
plaintiff  would  have  for  making  charitable  use  of  any  moneys 
left  after  satisfying  his  owti  necessities.  The  reason  for  the  de- 
cision in  that  case  calls  for  a  decision  in  this,  that  evidence  of 
such  a  character  should  not  be  received  in  cases  where  the  per- 
sonal element  is  not  permitted  by  the  statute  to  enter,  as  in  this 
case. 

The  judgment  should  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 

rnder  Lord  Campbell's  Act,  the  jury  can  consider  the  amount  of 
decedent's  property,  his  age,  and  prospective  increase  of  wealth, 
and  also  that  he  might  have  married,  and  his  fortune  gone  in  other 
channels.  R.  R.  Co.  v.  Barrow,  5  Wall  90.  Minor  children  can  recover 
for  loss  of  individual  pecuniary  benefits.  Terry  v.  Jewett,  78  N.  Y. 
338.  Under  some  statutes,  as  in  New  York,  remofe  collateral  kinsmen 
may  recover.  Evidence  as  to  damage  must  be  presented  to  the  jury; 
the  jury  cannot  give  a  verdict  with  nothing  before  them.  Beeson  v. 
Mining  Co.,  57  Cal.  20;  Morgan  v.  Southern  Pacific  Co.  97  Cal.  510. 
I'ain  suffered  by  decedent  prior  to  his  death  is  not  an  element  of  dam- 
age. Judge  Thillips  says  in  C.  B.  &  Q.  R.  R.  v.  Gunderson,  174  111. 
499:  "The  right  of  lineal  kindred  to  at  least  nominal  damages,  with- 
out proof  of  support,  is  given  by  the  statute."  It  Is  not  error  for  the 
trial  judge  to  charge  the  jury  without  elaboration,  that  it  could  give 
the  plaintiff  only  the  money  value  of  the  wife's  life  to  him,  unaffected 
by  sentimental  considerations.  Waechter  v.  Second  Ave.  Traction  Co., 
198  Pa.  129.  The  obligation  created  by  the  New  York  act  (Code  Civ. 
Proc,  sec.  1902)  can  not  be  enforced  against  a  city  for  death  caused 
by   unsanitary   conditions.     Hughes  v.  City  of  Auburn,  161  N.  Y.  96. 

Contributory  negligence  by  decedent  Is  a  bar  to  recovery.  Schlem- 
mer  v.  Buffalo  R.  &  P.  Ry.  Co.  (Penn.  1909),  71  Atl.  Rep.  1053.  ? 

Compensation  must  be  limited  to  the  pecuniary  loss  sustained;  a 
husband  is  entitled  to  recover  to  the  value  of  the  services  his  wife  may 
discharge  in  her  domestic  duties;  and  the  cost  of  maintenance  must 
be  deducted  from  the  value  of  such  services.  Gorton  v.  Harmon,  152 
Mich.  478. 

Where  plaintiff  has  married  a  second  wife,  since  the  wrongful  kill- 
ing, who  performs  all  the  services  rendered  by  the  deceased  wife,  the 
jury  cannot  consider  this  in  mitigation  of  damages.  Chicago  &  E.  I.  R. 
Co.  v.  Driseoll,  207  111.  9. 

la  estimating  pecuniary  loss  the  jury  can  consider  the  loss  of  society, 


TRESPASS.  i51 

comfort  and  care  suffered  by  kinsmen  in  the  death  of  husband  and 
father.     Dyas  v.  Southern  Pacific  Co.,  140  Cal.  296. 

Plaintiff  cannot  recover  for  "protection  and  support"  to  be  received 
by  him  from  his  female  child.  Quill  v.  Southern  Pacific  Co.,  140 
Cal.  268. 

Damages  may  not  be  awarded  for  mere  loss  of  society,  regardless  of 
any  actual  pecuniary  loss.  Wales  v.  Pacific  Electric  Motor  Co.,  130 
Cal.  521. 

Damages  to  a  father  from  the  death  of  a  boy  must  be  such  as 
would  compensate  him  for  his  expectation  of  pecuniary  benefit  from 
the  deceased;  a  verdict  of  $5,000  was  set  aside.  Graham  v.  Consoli- 
dated Traction  Co.,  64  N.  J.  L.  10. 

It  is  immaterial  that  a  crippled  son  of  decedent  needs  support  on 
account  of  his  helpless  condition.  Chicago,  P.  &  St.  L.  R.  R.  v.  Wool- 
ridge,  174  111.  335.  "The  feelings  of  the  widow  and  next  of  kin,  their 
wealth  or  poverty,  or  any  other  fact  than  the  pecuniary  injury,  cannot 
be  considered  in  assessing  the  damages."    R.  R.  v.  Baches,  55  111.  379. 


2.     Trespass. 
PERROTT  V.  SHEARER. 

Michigan,  1S6S.     17  Mich.  48. 

This  was  an  action  of  trespass  for  seizing  and  taking  certain 
goods  of  the  plaintiff.  The  goods  were  destroyed  by  fire,  while 
in  the  possession  of  such  officer. 

CooLEY,  Ch.  J.  The  plaintiff  in  error,  as  sheriff  of  the 
county  of  Bay,  by  virtue  of  a  writ  of  attachment  against  the 
goods  and  chattels  of  Henry  H.  Swinscoe,  levied  upon  a  stock 
of  goods  which  Shearer  claimed  as  assignee  of  the  firm  Swinscoe 
&  Son,  composed  of  said  Henry  H.  Swinscoe  and  George  E. 
Swinscoe.     *     *     * 

The  principal  question  in  the  case  springs  from  the  fact  that 
the  goods,  while  under  the  control  of  the  defendant,  in  pursu- 
ance, as  the  plaintiff  claimed,  of  said  attachment  levy,  were  ac- 
cidentally destroyed  by  fire.  The  plaintiff,  it  appears,  held,  at 
the  time,  insurance  policies  upon  them  to  their  full  value,  and, 
after  the  fire,  presented  to  the  insurance  companies  proofs  of 
the  loss,  and  received  pay  therefor.  Upon  this  state  of  facts  it 
w^as  claimed  by  defendant,  that  plaintiff's  position  was  the  same 
as  if  he  had  repossessed  himself  of  the  goods  by  replevin ;  and 
that  he  was  entitled  to  recover  damages  only  for  their  detention 


452  DAMAGES   IN    ACTIONS   FOR   WRONGS. 

up  to  the  time  of  the  lire.  The  Circuit  Judge  held  differently, 
;uid  instructed  the  jury  that  the  plaintiff  was  entitled  to  recover 
the  full  value  of  the  goods,  and  he  had  judgment  for  the  value 
accordingly. 

It  certainly  strikes  one,  at  first,  as  somewhat  anomalous, 
that  a  party  should  be  in  position  to  legally  recover  of  two  dif- 
ferent parties  the  full  value  of  goods  which  he  has  lost ;  but  we 
think  the  law  warrants  it  in  the  present  case,  and  that  the  de- 
fendant suffers  no  wrong  by  it.  He  is  found  to  be  a  wrong-doer 
in  seizing  the  goods,  and  he  cannot  relieve  himself  from  re- 
sponsibility to  account  for  their  full  value  except  by  restoring 
them.  He  has  no  concern  with  any  contract  the  plaintiff  may 
have"  with  any  other  party  in  regard  to  the  goods,  and  his  rights 
or  liabilities  can  neither  be  increased  nor  diminished  by  the  fact 
that  such  a  contract  exists.  He  has  no  equities  as  against  the 
plaintiff  which  can  entitle  him,  under  any  circumstances,  to  an 
assignment  of  the  plaintiff's  policies  of  insurance.  The  ac- 
cidental destruction  of  the  goods  in  his  hands  was  one  of  the 
risks  he  ran  when  the  trespass  was  committed,  and  we  do  not 
see  how  the  law  can  relieve  him  from  the  consequences.  If  the 
owner,  under  such  circumstances,  keeps  his  interest  insured,  he 
cannot  be  held  to  pay  the  money  expended  for  that  purpose  for 
the  interest  of  the  trespasser.  He  already  has  a  right  of  ac- 
tion for  the  full  value  of  the  goods,  and  he  does  not  give  that 
away  by  taking  a  contract  of  insurance.  For  the  latter  he  pays 
an  equivalent  in  the  premium,  and  is,  therefore  entitled  to  the 
benefit  of  it,  if  any  benefit  shall  result.  The  trespasser  pays 
nothing  for  it,  and  is,  therefore,  justly  entitled  to  no  return. 
The  case,  we  think,  is  within  the  principle  of  Merrick  v.  Brain- 
ard,  38  Barb.  574,  which  appears  to  us  to  have  been  correctly 
decided.  The  plaintiff  recovers  of  the  defendant  for  the  wrong 
that  has  been  done  him  in  taking  his  goods ;  and  he  recovers  of 
the  insurance  company  a  large  sum  for  a  small  outlay,  because 
such  payment  was  the  risk  they  assumed,  and  for  which  they  were 
fairly  compensated.  It  is  not  a  question  of  importance  in  this 
inquiry  whether  the  act  of  the  defendant  caused  the  loss  or  not : 
his  equitable  claim  to  a  reduction  of  damages,  if  he  could  have 
any,  would  spring  from  the  fact  that  the  plaintiff  recovers  pay 
for  his  property  twice ;  but  the  answer  to  this  is,  that  he  re- 
covers but  once  for  the  wrong  done  him,  and  he  receives  the 
insurance  money  upon  a  contract  to  which  the  defendant  is  in 


TRESPASS.  453 

no  way  privy,  and  in  respect  to  which  his  own  wrongful  act 
can  give  him  no  equities. 

We  discover  no  error  in  the  record,  and  the  judgment  must  be 
affirmed,  with  costs. 

Campbell  and  Graves,  JJ.,  concurred. 


STODGHILL  v.  CHICAGO,  BURLINGTON,  &  QUINCY 
RAILROAD. 

Iowa,  1880.     53  la.  341. 

Christopher  Stodghill  was  the  owner  of  a  farm  of  some  four 
hundred  and  eighty  acres  in  Wapello  County.  Part  of  said  farm 
consisted  of  a  tract  of  twenty-nine  acres  of  creek  or  pasture 
land.  The  defendant's  right  of  way  for  its  railroad  was  lo- 
cated along  the  north  line  of  said  tract.  The  natural  channel 
of  North  Avery  Creek  ran  across  the  right  of  way  upon  said 
tract,  meandered  through  it,  and  recrossed  the  north  line  of  the 
land,  and  the  right  of  way.  When  the  railroad  was  constructed, 
bridges  were  built  across  the  creek  which  spanned  the  channel, 
and  did  not  obstruct  the  passage  of  the  water  in  the  stream,  nor 
divert  it  from  where  it  was  wont  to  flow.  In  1874  the  defend- 
ants cut  a  channel  on  the  north  side  of  their  right  of  way,  and 
filled  in  the  bridge  where  the  stream  entered  plaintiff's  land, 
with  earth,  which  diverted  the  stream  into  the  new  channel  en- 
tirely, except  as  the  water  backed  through  a  culvert  at  the  point 
where  the  water  recrosses  the  right  of  way;  the  said  bridge  at 
the  last-named  point  having  been  previously  removed,  a  culvert 
there  constructed,  and  the  stream  filled  in  at  this  point,  except 
the  culvert  aforesaid. 

Christopher  Stodghill  commenced  an  action  against  the  de- 
fendant for  damages  to  his  land  by  reason  of  the  diversion  of 
the  stream.  He  recovered  a  verdict  and  judgment  for  one  dollar 
and  costs.  The  case  was  affirmed  upon  appeal  to  this  court. 
See  Stodghill  v.  C.  B.  &  Q.  R.  Co.,  43  Iowa,  26. 

Said  Stodghill  died  in  the  year  1876,  and  by  his  last  will  and 
testament,  which  was  duly  admitted  to  probate,  he  devised  the 
said  twenty-nine  acres  with  other  of  his  lands  to  the  plaintiff. 
This  action  was  commenced  in  February.  1877,  to  recover  dam- 
ages for  continuing  to  divert  the  water  from  the  natural  channel 


454  DAMAGES   IN    ACTIONS   FOK    WRONGS. 

of  said  ercok,  and  for  a  judgmont  directing  the  abatement  and 
removal  of  the  embankments  in  the  original  channel. 

There  was  a  trial  by  the  court  without  the  intervention  of  a 
jury,  and  a  judgment  was  rendered  for  plaintiff  for  one  dollar 
actual  damages,  and  seventy-five  dollars  exemplary  damages, 
and  an  order  was  made  requiring  the  defendant  to  abate  and 
remove  said  obstructions  from  the  natural  channel  of  the  creek. 
Defendant  appeals. 

RoTHROCK,  J.  When  the  earth  was  deposited  in  the  channel 
of  the  creek  and  raised  to  a  sufficient  height  to  cover  over  the 
bridge  and  make  a  solid  embankment  upon  which  to  lay  the  rail- 
road track,  the  water  in  the  creek  was  at  once  turned  into  the 
new  channel.  The  principal  question  in  the  case  is  whether  the 
judgment  for  damages  in  favor  of  Christopher  Stodghill  was 
a  full  adjudication  for  all  injuries  to  the  land,  not  only  up  to  the 
commencement  of  that  suit,  but  for  all  that  might  thereafter 
arise.  In  Powers  v.  Council  Bluffs,  45  Iowa,  652,  the  question 
being  as  to  what  is  a  permanent  nuisance,  it  was  held  that  where 
it  is  of  such  character  that  its  continuance  is  necessarily  an  in- 
jury, and  that  when  it  is  of  a  permanent  character  that  will 
continue  without  change  from  any  cause  but  human  labor,  the 
damage  is  original,  and  may  be  at  once  fully  estimated  and  com- 
pensated; that  successive  actions  will  not  lie,  and  that  the  Stat- 
ute of  Limitations  commences  to  run  from  the  time  of  the 
commencement  of  the  injury  to  the  property.  That  was  a  ease 
where  the  plaintiff  sought  to  recover  damages  against  the  city 
for  diverting  the  natural  channel  of  a  stream,  called  Indian 
Creek,  by  excavating  a  ditch  in  a  street  in  such  a  manner  that 
it  widened  and  deepened  by  the  action  of  the  water,  so  as  to  in- 
jure plaintiff's  lot  abutting  upon  said  street.  The  same  rule  was 
recognized  in  Town  of  Troy  v.  Cheshire  Railroad  Co.,  3  Foster 
(N.  H.),  83.  In  that  case  the  defendant  constructed  the  em- 
bankment of  its  railroad  upon  a  part  of  a  highway.  The  action 
was  by  the  town  to  recover  damages.  The  plaintiff  claimed  that 
it  was  entitled  to  recover  for  the  damages  for  the  permanent 
injury.  The  court  said:  "The  railroad  is  in  its  nature,  design, 
and  use,  a  permanent  structure,  which  cannot  be  assumed  to 
be  liable  to  change ;  the  appropriation  of  the  roadway  and  mate- 
rials to  the  use  of  the  railroad  is,  therefore,  a  permanent  diver- 
sion of  that  property  to  that  new  use,  and  a  permanent  dis- 
possession of  the  town  of  it  as  the  place  on  which  to  maintain  a 


TRESPASS.  455 

highway.  The  injury  done  to  the  town  is,  then,  a  permanent 
injury,  at  once  done  by  the  construction  of  the  railroad,  which 
is  dependent  upon  no  contingency  of  which  the  law  can  take 
notice,  and  for  the  injury  thus  done  to  them  they  are  entitled 
to  recover  at  once  their  reasonable  damages. ' ' 

The  ease  at  bar  is  much  a  stronger  illustration  of  what  is  a 
permanent  nuisance  or  trespass  for  which  damages,  past,  present, 
and  prospective,  may  be  recovered,  than  Powers  v.  Council 
Bluffs.  In  this  case  the  damages  to  the  whole  extent  were  at  once 
apparent.  The  water  was  diverted  from  the  natural  channel  as 
soon  as  the  embankment  was  raised  to  a  sufficient  height  to  turn 
the  current  into  the  new  channel.  The  injury  to  the  land  was 
then  as  susceptible  of  estimation  as  it  ever  afterwards  could  be, 
and  without  calculating  any  future  contingencies.  In  the  other 
case,  when  the  water  commenced  to  flow  in  the  new  channel  the 
plaintiff's  lots  were  not  injured.  It  required  time  to  wash  away 
the  banks  and  work  backward  before  the  injury  commenced.  It 
is  not  necessary  to  dwell  upon  this  question.  The  rule  estab- 
lished in  Powers  v.  Council  Bluffs,  supra,  is  decisive  of  this  case. 
See,  also  Chicago  &  Alton  R.  R.  Co.  v.  Maher,  Supreme  Court 
of  Illinois,  Chicago  Legal  News,  July  5,  1879.  Counsel  for  ap- 
pellee contend  that  the  railroad  embankment  is  not  permanent 
because  it  is  liable  to  be  washed  out  by  freshets  in  the  stream, 
and  cannot  stand  without  being  repaired.  There  is  no  evidence 
in  this  record  tending  to  show  that  the  embankment  is  insufficient 
to  accomplish  the  purpose  for  which  it  was  erected;  that  is, 
to  make  a  solid  railroad  track  and  divert  the  water  into  the  new 
channel.  One  witness  testified  that  it  is  from  sixteen  to  eighteen 
feet  high.  "We  will  not  presume  that  the  defendant  was  guilty  of 
such  a  want  of  engineering  skill  as  not  to  raise  its  embankments 
so  that  they  will  not  be  affected  by  high  water.  It  seems  to 
"US  that  a  railroad  embankment,  of  proper  width  and  raised  to 
the  proper  height,  is  about  as  permanent  as  anything  that  human 
hands  can  make.  Before  leaving  this  branch  of  the  case,  it  is 
proper  to  say  that  the  acts  complained  of  were  done  within  the 
limit  of  the  defendant's  right  of  way,  and  the  injury,  if  any,  to 
the  plaintiff's  land,  was  consequential.  The  defendant  did  not 
enter  upon  plaintiff's  land  to  take  a  right  of  way  for  its  railroad, 
and  Christopher  Stodghill  did  not  bring  his  action  to  recover 
upon  that  ground.  As  we  have  a  statute  providing  for  pro- 
ceedings to  condemn  the  land  necessary  to  be  taken  for  right 


456  DAMAGES    IN    ACTIONS    FOB    WRONGS. 

of  way  for  railroad  purposi's,  it  may  be  that  the  mode  of  ascer- 
taining the  daiiiaj?es  preseribtnl  by  the  statute  must  bo  pursued. 
See  Daniels  v.  C.  &  N.  W.  R.  K.  Co.,  ^f)  It.wa,  129.  That  ques- 
tion, however,  is  not  in  this  ease,  and  we  only  refer  to  it  lest  we 
may  be  misunderstood. 

Christopher  Stodgliill.  in  his  petition  in  the  former  action, 
averred  that  the  diversion  of  the  stream  from  its  natural  course 
across  said  land  perpetually  deprived  him  of  the  use  thereof, 
to  his  great  damage  in  the  prosecution  of  his  business,  and  in 
the  depreciation  in  the  value  of  his  said  farm  and  pasture  lands, 
and  he  claimed  damages  in  the  sum  of  $499.  The  court  in- 
structed the  jury  in  that  case  that  they  were  not  to  consider 
the  question  in  regai'd  to  any  permanent  damage  to  the  land, 
for  the  reason  that  the  plaintiff  had  the  right  to  institute  other 
suits  to  recover  damages  sustained  after  the  commencement  of 
the  action. 

But  the  plaintiff  claimed  damages  generally,  and  by  his  plead- 
ings he  and  those  holding  under  him  must  be  bound.  Indeed, 
we  do  not  understand  counsel  for  appellee  to  contend  otherwise. 
The  damages  being  entire  and  susceptible  of  immediate  recovery, 
the  plaintiff  could  not  divide  his  claim  and  maintain  successive 
actions.  The  erroneous  instructions  of  the  court  to  the  jury 
did  not  affect  the  question.  It  was  the  duty  of  the  plaintiff 
to  have  excepted  and  appealed.  "An  adjudication  is  final  and 
conclusive,  not  only  as  to  the  matter  actually  determined,  but 
as  to  every  other  matter  which  the  parties  might  have  litigated 
and  have  had  decided,  as  incident  to  or  essentially  connected 
with  the  subject-matter  of  litigation."  Freeman  on  Judgments, 
sec.  249.  And  see  Dewey  v.  Peck,  33  Iowa,  242;  Schmidt  v. 
Zahensdorf,  30  Iowa,  498. 

The  foregoing  considerations  dispose  of  the  ease,  and  it  be- 
comes unnecessary  to  examine  or  determine  other  questions  dis- 
cussed by  counsel. 

Reversed. 


TRESPASS.  457 

KOERBER  V.  PATEK. 

Wisconsin,   1905.     123  Wis.  453. 

Action  to  recover  damages  for  mutilation  of  the  dead  body  of 
plaintiff's  mother.  Appeal  from  an  order  sustaining  a  demurrer 
to  the  complaint. 

Dodge,  J.  This  action  presents  a  field  for  consideration  un- 
charted by  any  direct  decisions  in  this  court.  The  primary  and 
general  question  is  whether  any  relative,  having  the  convention- 
ally recognized  duty  of  providing  proper  obsequies  and  sepulture 
for  the  remains  of  a  deceased  relative,  has  any  rights,  enforceable 
by  courts,  to  be  protected  in  the  performance  of  that  service.  It 
is  said  the  law  protects  only  the  person  and  the  purse  (Chapman 
V.  W.  U.  Tel.  Co.,  88  Ga.  763),  and  doubtless,  as  an  epigram- 
matic generalization,  this  is  reasonably  correct.  Upon  this  basis 
it  is  argued  that  such  a  complaint  as  the  present  presents  no  case 
of  injury  either  to  property  or  person  of  the  plaintiff — clearly 
not  to  the  person  physically,  and  not  to  the  property,  it  is  argued, 
because  there  can  be  no  property  in  a  dead  body.     *     *     * 

For  the  purposes  of  this  case  we  shall  not  deem  it  necessary  to 
consider  whether  a  corpse  can  be,  in  any  respect,  property.  From 
the  authorities  cited,  and  from  original  reason,  the  conclusion 
seems  to  us  irresistible  that  in  the  nearest  relative  of  one  dying, 
so  situated  as  to  be  able  and  willing  to  perform  the  duty  of  cere- 
monious burial,  there  vests  the  right  to  perform  it,  and  that  this 
is  a  legal  right,  which,  as  said  in  some  of  the  cases,  it  is  a  wrong 
to  violate,  and  which,  therefore,  courts  can  and  should  protect 
and  vindicate.     *     *     * 

We  can  imagine  no  clearer  or  dearer  right  in  the  gamut  of  civil 
liberty  and  security  than  to  bury  our  dead  in  peace  and  unob- 
structed ;  none  more  sacred  to  the  individual,  nor  more  important 
of  preservation  and  protection  from  the  point  of  view  of  public 
welfare  and  decency;  certainly  none  where  the  law  need  less 
hesitate  to  impose  upon  a  willful  violator  responsibility  for  the 
uttermost  consequences  of  his  act.  We  recognize,  of  course,  that 
public  welfare  may  and  does  require  governmental  control  in 
many  respects  for  protection  of  life  and  health  of  the  people,  and 
for  discovery  of  crime  connected  with  the  death  of  a  person,  and 
to  such  interests  the  private  right  is  subservient  so  far  as  neces- 
sary. Upon  this  ground  rest  cases  of  autopsies  upon  dead  bodies 
under  public  authority,  and  to  satisfy  police  regulations  for  as- 
certainment of  cause  of  death. 


ioS  DAMAGES   IN   ACTIONS   FOR   WRONGS, 

The  question  Avhether  anything  more  than  nominal  damages 
can  be  roeovered  has  boon  earnestly  argued  by  eounsel,  and  is 
only  second  in  importance  to  that  of  the  existence  of  any  cause 
of  action  at  all,  for,  obviously,  in  cases  of  this  character,  any  pe- 
cuniary loss  to  plaintiff  must  usually  be  merely  trifling.  The 
great  injury  done  consists  in  the  outrage  upon  the  sensibilities. 
Can  such  injury  be  considered  as  legal  damage,  otherwise  than 
by  way  of  imposing  punitory  damages  in  case  of  actual  malice? 
It  is  settled  in  this  as  in  most  jurisdictions  that  mental  suffering 
may  be  an  actual  injury,  for  which  award  is  to  be  made  strictly 
as  compensation  in  proper  cases,  Wilson  v.  Young,  31  Wis.  574; 
Gatzow  V,  Buening,  106  Wis,  1.  Such  injury,  however  clearly 
existent,  has  been  held  not  a  proper  element  of  recoverable  dam- 
ages in  actions  on  contract,  except  breach  of  promise  of  marriage, 
Walsh  V.  Ry.  Co.,  42  Wis.  23 ;  Giese  v.  Schultz,  53  Wis.  462.  Nor 
in  actions  of  mere  negligence,  unless,  as  a  proximate  result  of  the 
negligence,  there  be  physical  injury  from  which  flows  the  mental 
suffering.  Summerfield  v.  W.  U.  Tel.  Co.,  87  Wis.  1,  In  these 
respects  w^e  differ  from  a  few  courts  which  have  adopted  what  is 
kno\\Ti  as  the  "Texas  doctrine,"  applied  originally  to  failure  to 
deliver  telegrams,  but  since  to  other  phases  of  both  negligence 
and  breach  of  contract  causing  mental  anguish.  In  Indiana  it 
has  been  invoked  to  support  such  damages  resulting  from  breach 
of  contract  to  prepare  and  preserve  a  corpse  for  burial,  Renihan 
V.  Wright,  125  Ind.  536.  That  doctrine,  with  its  supporting 
authorities,  was  reviewed  fully  in  the  Summerfield  Case,  and 
repudiated.  The  only  other  tort  action  in  Wisconsin  where 
mental  suffering  w^as  denied  as  an  element  of  compensatory  dam- 
ages is  Gatzow  V.  Buening,  106  Wis.  1,  which  was  for  a  conspir- 
acy to  induce  the  breaking  of  a  contract  to  supply  a  hearse  for  a 
funeral ;  the  contract  being  broken,  and,  as  a  result,  the  funeral 
interrupted.  In  many  other  tort  actions  mental  distress  has  been 
held  a  proper  independent  element  of  damage,  though  in  no  wise 
resulting  from  a  physical  injury,  but  directly  from  the  wrongful 
act — from  the  outrage  of  some  legal  right.  Only  a  few  such  need 
be  cited.  Craker  v.  Ry.  Co.,  36  Wis.  657 ;  Fenelon  v.  Butts,  53 
Wis.  344 ;  Stutz  V.  Ry.  Co.,  73  Wis.  147 ;  Grace  v.  Dempsey,  75 
Wis.  313 ;  Pelardis  v.  Journal  Printing  Co.,  99  Wis.  156 ;  Ford  v. 
Schliessman,  107  Wis.  479.  It  is  thus  apparent  that  some  torts 
do  and  some  do  not,  subject  the  perpetrator  to  liability  to  com- 
pensate the  anguish  and  suffering  which  his  wrongful  act  im- 


TRESPASS.  459 

poses  upon  the  victim.  Probably  the  line  between  them  is  not  so 
accurately  drawTi  that  the  location  of  every  act  on  the  one  side 
or  the  other  is  always  easy  or  free  from  doubt.  It  is  obvious  that 
in  mere  negligence  there  is  no  intent  to  offer  indignity  to,  or 
wound  the  feelings  of,  another;  and  it  may  be  legitimately  said, 
as  matter  of  law,  that  such  result  from  mere  inadvertence  is  so 
remote  and  beyond  ordinary  probabilities  that  there  exists  no 
proximate  causal  relation  between  the  two,  unless  a  physical  in- 
jury is  caused,  out  of  which,  in  natural  sequence,  arises  mental, 
like  physical,  pain.  In  Summerfield  v,  W.  U.  Tel.  Co.,  supra,  this 
court,  by  the  pen  of  Mr.  Justice  Winslow,  quoted  approvingly 
from  W.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  a  classification  of  the 
torts  other  than  negligence  supporting  recovery  for  mental  suffer- 
ing as  an  independent  element,  as  follows :  ' '  Cases  of  willful 
wrong — especially  those  affecting  the  liberty,  character,  reputa- 
tion, personal  security,  or  domestic  relations  of  the  injured 
party. ' '  In  Gatzow  v.  Buening,  supra,  it  was  said  that  the  wrong 
there  complained  of,  already  described,  did  not  fall  within  the 
above  category.  This  was  quite  obviously  true  of  the  particular 
tort,  to  wit,  the  conspiracy  to  prevent  the  making  or  performance 
of  a  contract  to  supply  a  hearse  for  a  funeral.  In  that  there 
could  be  no  intent  to  wound  the  feelings  of  plaintiff — he  was  not 
in  the  mind  of  the  conspirators ;  and,  if  some  such  result  was  to 
be  anticipated  as  possible,  it  would  be  quite  as  remote  as  from  the 
mere  act  of  breaking  the  contract.  Such  damage  would  be  not 
the  direct  result  of  the  conspiracy,  but  remote  and  consequential, 
like  the  disappointment  resulting  from  breach  of  a  promise  to 
supply  on  time  a  wedding  present  or  funeral  flowers.  The  prox- 
imate causal  relation  between  the  conspiracy  and  the  mental 
effect  was  lacking.  Counsel  seem  to  read  that  case  as  if  it  were 
one  against  Buening  alone  for  his  violence  and  force  in  physi- 
cally preventing  plaintiff  from  using  the  hearse,  in  abusive  and 
turbulent  manner,  evincive  of  an  intent  to  insult  and  outrage 
his  feelings.  Had  that  been  the  act  complained  of,  we  could 
hardly  have  said  that  it  did  not  fall  within  the  classification  ap- 
proved in  the  Summerfield  Case,  including  willful  wrongs  affect- 
ing the  "liberty,"  "security,"  or  "domestic  relations."  In  Ford 
V.  Schliessman,  supra,  it  was  pointed  out  that  an  assault  or  tech- 
nical imprisonment,  though  without  physical  contact,  falls  within 
the  classification  of  the  Summerfield  Case,  because  "it  invades 
the  personal  liberty  and  rights."    Again,  in  Hacker  v.  Heiney, 


460  DAMAGES    IN    ACTIONS    FOR    WRONGS. 

supra,  in  discussing  the  contention  that  there  could  be  no  recov- 
ery for  injury  to  feelings  in  absence  of  other  actual  damage,  it 
was  said:  "The  rule  for  which  appellant  contends  has  been  ap- 
plied onl}-  to  cases  of  negligence  or  of  alleged  personal  injury, 
where  the  mental  suffering  can  result  only  from  the  injury,  and 
not  from  the  tort.  It  has  never  been  applied  to  cases  of  malice, 
such  as  false  imprisonment  and  slander."  In  Larson  v.  Chase, 
supra,  the  remarks  of  j\litchell,  J.,  on  this  subject,  are  so  philo- 
sophical that  we  cannot  forbear  quoting  them.  He  says :  ' '  Every 
injury  imports  a  damage.  Hence  the  complaint  stated  a  cause 
of  action  for  at  least  nominal  damages.  We  think  it  states  more. 
There  has  been  a  great  deal  of  misconception  and  confusion  as 
to  when,  if  ever,  mental  suffering,  as  a  distinct  element  of  dam- 
age," is  a  subject  for  compensation.  This  has  frequently  resulted 
from  courts  giving  a  wrong  reason  for  a  correct  conclusion  that 
in  a  given  ease  no  recovery  could  be  had  for  mental  suffering; 
placing  it  on  the  ground  that  mental  suffering,  as  a  distinct  ele- 
ment of  damage,  is  never  a  proper  subject  of  compensation,  when 
the  correct  ground  was  that  the  act  complained  of  was  not  an  in- 
fraction of  any  legal  right,  and  hence  not  an  actionable  wrong  at 
all,  or  else  that  the  mental  suffering  was  not  the  direct  and  prox- 
imate effect  of  the  wrongful  act.  *  *  *  But  where  the 
wrongful  act  constitutes  an  infringement  of  a  legal  right,  mental 
suffering  may  be  recovered  for,  if  it  is  direct,  proximate,  and 
natural  result  of  the  wTongful  act."  In  Lombard  v.  Lenox,  155 
Mass.  70,  it  is  said :  "If  the  ordinary  and  natural  consequence 
of  the  tort  is  to  cause  an  injury  to  the  feelings  of  the  plaintiff, 
and  if  the  acts  are  done  willfully  or  with  gross  carelessness  of 
the  right  of  plaintiff,  damages  may  be  recovered  for  mental  suf- 
fering." Similar  views  are  expressed  by  text-writers.  1  Sedg- 
wick, Dam.  (8th  Ed.)  §§  43  to  47;  1  Sutherland,  Dam.  §  95 
et  seq. ;  2  Kinkead,  Torts,  §  463. 

These  expressions  from  other  courts  are  perhaps  useful  as  in- 
dicating the  philosophy  involved  in  distinguishing  between  those 
torts  which  may  and  tho.se  which  cannot  be  deemed  to  so  proxi- 
mately cause  sense  of  outrage  and  mental  suffering  that  the  law 
will  recognize  .such  effect  as  an  independent  element  of  recover- 
able damage,  whether  resulting  merely  from  some  other  injury, 
or  directly  from  the  tort  itself;  but  they  do  not,  in  our  judgment, 
vary  or  enlarge  the  field  charted  and  delimited  in  the  Summer- 
field  Case,  as  above  quoted.     For  the  present  case  we  are  con- 


TRESPASS.  461 

vinced  that  sufficient  guide  can  be  found  in  the  catalogue  there 
promulgated.  Certainly  this  complaint  asserts  a  "willful 
wrong,"  not  only  in  the  sense  that  some  injury  to  plaintiff's  legal 
rights  was  intended,  but  also  that  an  affront  to  his  feelings  was 
so  certain  to  be  caused  by  the  defendant 's  act  that  the  latter  must 
be  deemed  to  have  intended  that  particular  injury.  We  also 
think  that,  without  undue  stretch  of  meaning,  the  wrong  com- 
plained of  affects  the  "domestic  relations" — otherwise  called  the 
relative  rights — of  plaintiff.  The  duty  of  surviving  spouse,  par- 
ent, or  child  to  provide  proper  burial  for  the  corpse  springs  from 
the  relationship  to  the  person  deceased.  The  desire  to  perform 
such  service  is  founded  in  that  respect  and  affection  entertained 
for  the  relative,  of  whom  the  body,  it  is  true,  is  but  the  sj^mbol, 
but,  for  the  few  hours  after  life  ceases,  seems  so  to  still  represent 
him  who  was,  that  acts  of  care  and  protection  to  it  are  still  paid 
to  such  departed.  ]\Ir.  Kinkead  says,  ' '  The  family  tie  takes  us  to 
the  last  resting  place  of  our  dead"  (2  Torts,  §  459),  and  there- 
fore classes  torts  of  the  kind  here  presented  as  committed  against 
the  relative  rights  growing  out  of  the  domestic  relations,  like 
seduction  or  abduction  of  wife  or  child.  Mr.  Cooley  likewise  so 
classifies  them.  Torts  (2d  Ed.)  p.  280.  Recognition  that  duties 
arising  in  the  domestic  relation  persist  beyond  death  is  not  want- 
ing in  the  law.  Upon  that  idea  is  predicated  the  liability  of  the 
surviving  husband  for  burial  expenses  incurred  by  a  stranger 
for  the  body  of  his  deceased  wife,  in  strict  analogy  to  necessaries 
furnished  her  in  life.  Bradshaw  v.  Board,  12  C.  B.  (N.  S.)  344; 
Cunningham  v.  Reardon,  98  Mass.  538;  Patterson  v.  Patterson, 
59  N.  Y.  583;  Bishop,  Husb.  &  W.  §  566.  Statutes  providing 
temporary  support  out  of  an  estate  for  widow  and  minor  children 
unquestionably  find  their  reason  in  the  same  conception.  Doubt- 
less other  illustrations  might  be  suggested,  but  these  suffice  to 
satisfy  us  that  there  is  neither  solecism  nor  unreason  in  the  view 
that  the  right  of  custody  of  the  corpse  of  a  near  relative  for  the 
purpose  of  paying  the  last  rites  of  respect  and  regard  is  one  of 
those  relative  rights  recognized  by  the  law  as  springing  from  the 
domestic  relation,  and  that  a  willful  or  wrongful  invasion  of  that 
right  is  one  of  those  torts  for  which  damages  for  injury  to  feel- 
ings are  recoverable  as  an  independent  element.  Apart  from 
this  view,  however,  we  should  deem  it  indisputable  that  the  tort 
alleged  is  one  "affecting  the  liberty"  of  plaintiff.  The  right  to 
entomb  the  remains  of  his  deceased  mother  in  their  integrity  and 


462  DAMAGES   IN    ACTIONS    FOli    WRONGS. 

without  mutilation,  we  have  already  decided,  must  be  recognized 
as  a  legal  one.  The  liberty  of  a  member  of  a  community  gov- 
erned by  law  is  not  merely  freedom  from  actual  imprisonment, 
but  from  obstruction  of  or  interference  with  those  acts  which  it 
is  his  right  to  do  at  will.  State  ex  rel.  Zillmer  v.  Kreutzberg, 
114  Wis.  530.  An  illustration  is  the  right  to  vote,  mentioned  in 
some  of  the  above-cited  eases,  with  which  the  right  alleged  to 
have  been  invaded  in  this  case  seems  to  stand  in  complete  anal- 
ogy. We  therefore  conclude  that  the  sense  of  outrage  and  the 
mental  suffering  resulting  directly  from  the  willful  act  charged 
on  the  defendant  in  this  case  are  proper  independent  elements  of 
compensatory  damages.     *     *     * 

Order  revei'sed  and  cause  remanded,  with  directions  to  over- 
rule' the  demurrer. 


HADWELL  V.  RIGHTON. 

L.  R.  2  K.  B.  1907,  345. 

Plaintiff  was  riding  a  bicycle  on  a  highway  when  he  ran  into 
three  fowls  belonging  to  defendant.  A  dog  belonging  to  a  third 
party  frightened  the  fowls  and  one  of  them  flew  into  the  spokes 
of  the  wheel  causing  plaintiff'  to  fall  and  damaging  his  bicycle 
and  himself  as  well.  The  court  held  the  damage  too  remote  and 
plaintiff  appeals. 

Phillimore  J.  I  propose  to  rest  my  decision  in  this  case  upon 
Cox  V.  Burbidge,  13  C.  B.  (N.  S.)  430,  436.  The  passage  in  that 
case  to  which  I  would  specially  refer  is  in  the  judgment  of  Erie 
C.  J. :  *'  To  entitle  the  plaintiff  to  maintain  the  action  it  is  neces- 
sary to  show  a  breach  of  some  legal  duty  due  from  the  defendant 
to  the  plaintiff ;  and  it  is  enough  to  say  that  there  is  no  evidence 
to  support  the  affirmative  of  the  issue  that  there  was  negligence 
on  the  part  of  the  defendant  for  which  an  action  would  lie  by 
the  plaintiff.  .  .  .  But  even  if  there  was  any  negligence  on  the 
part  of  the  owner  of  the  horse,  I  do  not  see  how  that  is  at  all 
connected  with  the  damage  of  which  the  plaintiff  complains. 
It  appears  that  the  horse  was  on  the  highway  and  that,  without 
anything  to  account  for  it,  he  struck  out  and  injured  the  plain- 
tiff. I  take  the  well-known  distinction  to  apply  here,  that  the 
owTier  of  an  animal  is  answerable  for  any  damage  done  by  it,  pro- 
vided it  be  of  such  a  nature  as  is  likely  to  arise  from  such  an  ani- 


TRESPASS.  463 

mal,  and  the  owner  knows  it."  In  the  present  ease  the  county 
court  judge  assumed  that  the  fowls  were  unlawfully  upon  the 
highway  as  they  were  not  using  it  for  the  mere  purpose  of  pas- 
sage either  in  the  company  of  their  owner  or  without  him.  Even 
if  we  adopt  that  assumption,  was  the  damage  which  in  fact  hap- 
pened of  such  a  nature  as  was  likely  to  result  from  their  un- 
lawful presence  there?  There  was  no  antecedent  probability 
that  the  fowl  would  be  frightened  by  a  dog,  still  less  was  there 
any  probability  that  if  so  frightened  it  would  fly  into  the  spokes 
of  a  bicycle.  The  owoier  was  not  bound  to  contemplate  such  a  re- 
sult as  likely  to  flow  from  his  letting  the  fowls  be  at  large  upon 
the  road.  Even  if  the  fowl  was  wrongly  upon  the  highway  it 
would  have  done  no  harm  but  for  the  wrongful  act  of  the  animal 
of  a  third  person.  In  the  course  of  endeavoring  to  avoid  one 
danger  it  runs  into  another.  And  in  such  a  case  "Causa  proxinia 
non  rcmota  spectatur."  The  negligence,  if  any,  of  allowing  the 
fowl  to  be  there  was  not  connected  with  the  damage.  Apart 
from  the  action  of  the  dog  there  was  no  evidence  that  fowls  are 
in  the  habit  of  flying  into  passing  bicycles. 

So  far  I  have  assumed  that  the  county  court  judge  was 
right  in  treating  the  fowl  as  wrongfully  upon  the  highway,  but  I 
cannot  allow  the  case  to  pass  without  saying  that  I  think  the 
plaintiff's  counsel  have  put  too  narrow  a  limitation  upon  the 
uses  to  which  a  highway  may  lawfully  be  put.  It  was  said  that 
the  right  of  members  of  the  public  in  a  highway  were  confined 
to  passing  and  repassing,  and  that  animals,  except  when  ac- 
companied by  their  owners,  had  no  right  to  be  on  the  highway  at 
all.  In  the  first  place,  I  think  that  members  of  the  public, 
in  addition  to  using  it  eundo  et  redeundo,  are  also  entitled  to  use 
it  morando  for  a  short  time.  And  I  doubt  whether,  even  with 
that  addition,  the  lawful  uses  are  thereby  exhausted.  For  in- 
stance, if  fowls  are  kept  near  a  highway,  and  there  is  a  corn 
stubble  belonging  to  their  owner  on  the  other  side  of  the  road 
to  which  they  might  naturally  and  properly  go,  I  am  not  pre- 
pared to  say  that  to  allow  them  to  go  there  by  themselves  would 
be  an  unlawful  use  of  the  highway  by  their  ownier  simply  be- 
cause they  might  while  so  doing  run  or  fly  into  some  one  who 
was  riding  a  bicycle. 

Appeal  dismissed. 

Where  in  case  of  mining  operations  fliere  lias  been  a  cave-in  from 
failure  of  the  miner  to  furnish  surface  support,  the  measure  of  dam- 


464  DAMAGES   IN   ACTIONS    FOR   WRONGS. 

ages  is  the  actual  loss  the  owners  of  the  surface  have  sustained  to  the 
land  and  huildlnps  thereon.  The  difference  in  market  value  before 
and  after  the  injury  is  not  the  true  rule  in  such  cases.  Noonan  v. 
Pardee,  300  Pa.  474. 

Whei'e  the  tenant  of  leasehold  land  brings  a  suit  for  trespass  resulting 
in  the  destruction  of  grass,  the  measure  of  damages  is  the  value  of  the 
grass  destroyed;  that  is  the  limit  of  the  tenant's  interest.  Painter  v. 
Stahley,  15  Wyo.  510. 

A  tenant  for  life  leased  land  to  an  oil  company,  and  the  latter  con- 
tinued to  take  oil  therefrom  after  the  life  tenant  had  died.  The  re- 
mainder man  sued  in  trespass,  and  the  court  held  that  the  measure  of 
damages  was  the  difference  between  what  oil  sells  for  in  the  market 
and  the  cost  of  production.    Crawford  v.  Forest  Oil  Co.,  208  Pa.  5. 

The  measure  of  damages  for  waste  by  removing  timber  from  land  is 
the  diminished  value  of  the  land,  not  the  value  of  the  timber  in  its 
manufactured  state.  Nelson  v.  Churchill,  117  Wis.  10.  See  also 
Charles  v.  Clearfield  Lumber  Co.,  209  Pa.  422. 

In  an  action  of  trespass  for  forcibly  excluding  plaintiff  from  fish- 
ing for  salmon  in  public  waters  near  Tanglefoot  Beach  along  the  shore 
of  Alaska,  where  a  verdict  of  $14,000  was  recovered,  the  court  held 
it  error  to  exclude  testimony  as  to  the  motive  of  defendant.  Pacific 
S.  W.  Co.  V.  Alaska  Packers  Asso.,  138  Cal.  632. 

Where  defendant  commits  a  trespass  on  land,  and  seizes  growing 
crops,  and  does  this  in  good  faith,  believing  he  has  title,  the  measure 
of  damages  is  the  value  of  the  crop  at  the  time  of  the  trespass.  And 
where  plaintiff  is  ousted  of  land  having  growing  crops,  the  measure 
of  damages  is  the  difference  in  rental  value  of  the  whole  leasehold 
and  the  part  unlawfully  seized.     Irwin  v.  Solde,  176  Pa.  594. 

Where  the  owners  of  a  hotel  construct  the  same  so  as  to  reader 
an  adjoining  house  untenantable,  and  plaintiff  moves  out,  he  can  re- 
cover against  the  contractor  for  discomfort,  cost  of  storage  of  furni- 
ture and  increased  cost  of  living.  McFadden  v.  Thompson,  110  App. 
Div.  N.  Y.  285. 

Determination  of  cost  is  not  a  determination  of  value.  To  determine 
value  of  growing  crops  see  Teller  v.  Bay  &  River  Dredging  Co.,  151 
Cal.  209. 

For  destruction  of  shade  trees  the  only  way  of  estimating  damages 
is  to  consider  the  lessened  value  of  the  land.  If  the  injury  be  wanton, 
punitory  damages  may  be  awarded.    Oilman  v.  Brown,  115  Wis.  1. 

So,  too,  in  waste,  the  question  is  as  to  the  diminished  value  of  the 
land.     Nelson  v.  Churchill,  117  Wis.  10. 

Where  the  government  sues  timber  thieves  for  stealing  on  the  public 
domain,  the  value  of  the  timber  unlawfully  cut  is  the  measure  of  dam- 
ages.    U.  S.  v.   St.  Anthony  R.  R.  192  U.   S.  451. 

Where  a  mining  company,  through  trespass,  injures  plaintiff's 
springs,  the  permanent  depreciation  of  the  realty  measures  the  dam- 
ages— the  difference  in  market  value  before  and  after  the  trespass. 
Rabe  v.  Schoenberger  Coal  Co.,  213  Pa.  252. 


TROVER   AND    CONVERSION.  465 

Cost  of  restoring  a  building  injured  by  trespass  may  be  measure  of 
damages  where  it  is  a  small  sum  and  less  than  the  amount  of  deprecia- 
tion.    Bates  V.  Warrick,  71  Atl.  Rep.  1116. 


3.     Trover  and  Conversion. 

FORSYTH  V.  WELLS. 

Pennsylvania,  1861.    41  Pa.  291. 

The  plaintiff  declared  in  trover  for  mining  and  carrying  away 
coal  from  her  lands,  to  vs'hich  the  defendant  pleaded  not  guilty. 

LowRiE,  C.  J.  We  are  to  assume  that  it  was  by  mistake 
that  the  defendant  below  went  beyond  his  line  in  mining  his  coal, 
and  mined  and  carried  away  some  of  the  plaintiff's  coal,  and  it 
is  fully  settled  that  for  this  trover  lies.  3  S.  &  R.  515 ;  9  Watts, 
172;  8  Barr,  294;  9  Id..  343;  9  Casey,  251. 

What,  then,  is  the  measure  of  damages?  The  plaintiff  insists 
that,  because  the  action  is  allowed  for  the  coal  as  personal  prop- 
erty, that  is,  after  it  had  been  mined  or  severed  from  the  realty, 
therefore,  by  necessary  logical  sequence,  she  is  entitled  to  the 
value  of  the  coal  as  it  lay  in  the  pit  after  it  had  been  mined ;  and 
so  it  was  decided  below.  It  is  apparent  that  this  view  would 
transfer  to  the  plaintiff  all  the  defendant's  labor  in  mining  the 
coal,  and  thus  give  her  more  than  compensation  for  the  injury 
done. 

Yet  we  admit  the  accuracy  of  this  conclusion,  if  we  may 
properly  base  our  reasoning  on  the  form,  rather  than  on  the 
principle  or  purpose  of  the  remedy.  But  this  we  may  not  do; 
and  especially  we  may  not  sacrifice  the  principle  to  the  very  form 
by  which  we  are  endeavoring  to  enforce  it.  Principles  can  never 
be  realized  without  forms,  and  they  are  often  inevitably  em- 
barrassed by  unfitting  ones ;  but  still  the  fact  that  the  form  is  for 
the  sake  of  the  principle,  and  not  the  principle  for  the  form, 
requires  that  the  form  shall  serve,  not  rule,  the  principle,  and 
must  be  adapted  to  its  office. 

Just  compensation  in  a  special  class  of  cases  is  the  principle 
of  the  action  of  trover,  and  a  little  study  will  show  us  that  it  is 
no  unyielding  form,  but  adapts  itself  to  a  great  variety  of  cir- 
cumstances. In  its  original  purpose,  and  in  strict  form,  it  is  an 
action  for  the  value  of  personal  property  lost  by  one  and  found 


466  DAMAGES    IN    ACTIONS    FOR    WRONGS. 

by  another,  and  converted  to  his  own  use.  But  it  is  not  thus  re- 
stricted in  practice;  for  it  is  continually  applied  to  every  form 
of  wrongful  conversion,  and  of  ^^Tongful  taking  and  conversion, 
and  it  affords  compensation  not  only  for  the  value  of  the  goods, 
but  also  for  outrage  and  malice  in  the  taking  and  detention  of 
them.  6  S.  &  R.  426 ;  12  Id.  93 ;  3  Watts,  333.  Thus  form  yields 
to  purpose  for  the  sake  of  completeness  of  remedy.  Even  the 
action  of  replevin  adapts  itself  thus.  1  Jones,  381.  And  so  does 
trespass.    7  Casey,  456. 

In  very  strict  form,  trespass  is  the  proper  remedy  for  a 
wrongful  taking  of  personal  property,  and  for  cutting  timber, 
or  quarrying  stone,  or  digging  coal  on  another  man's  land  and 
carrying  it  away ;  and  yet  the  trespass  may  be  waived  and  trover 
maintained,  w'ithout  giving  up  any  claim  for  any  outrage  or 
violence  in  the  act  of  taking.  3  Barr,  13.  It  is  quite  apparent, 
therefore,  that  this  form  of  action  is  not  so  uniform  and  rigid 
in  its  administration  as  to  force  upon  us  any  given  or  arbitrary 
measure  of  compensation.  It  is  simply  a  form  of  reaching  a  just 
compensation,  according  to  circumstances,  for  goods  wrongfully 
appropriated.  When  there  is  no  fraud,  or  violence,  or  malice, 
the  just  value  of  the  property  is  enough.    11  Casey,  28. 

When  the  taking  and  conversion  are  one  act,  or  one  continued 
series  of  acts,  trespass  is  the  more  obvious  and  proper  remedy; 
but  the  law  allows  the  waiver  of  the  taking,  so  that  the  party 
may  sue  in  trover ;  and  this  is  often  convenient.  Sometimes  it  is 
even  necessary ;  because  the  plaintiff,  with  full  proof  of  the  con- 
version, may  fail  to  prove  the  taking  by  the  defendant.  But 
w^hen  the  law  does  allow  this  departure  from  the  strict  form,  it 
is  not  in  order  to  enable  the  plaintiff,  by  his  own  choice  of  actions, 
to  increase  his  recovery  beyond  just  compensation ;  but  only  to 
give  him  a  more  convenient  form  for  recovering  that  much. 

Our  case  raises  a  question  of  taking  by  mere  mistake,  be- 
cause of  the  uncertainty  of  boundaries ;  and  we  must  confine  our- 
selves to  this.  The  many  conflicting  opinions  on  the  measure  of 
damages  in  cases  of  wilful  wrong,  and  especially  the  very  learned 
and  thoughtful  opinions  in  the  case  of  Silsbury  v.  McCoon,  4 
Denio,  332,  and  3  Comst.  379,  warn  us  to  be  careful  how  we  ex- 
press ourselves  on  that  subject. 

We  do  find  eases  of  trespass,  where  .judges  have  adopted 
a  mode  of  calculating  damages  for  taking  coal,  that  is  substan- 
tially equivalent  to  the  rule  laid  down  by  the  Common  Pleas  in 


TROVER   AND    CONVERSION.  467 

this  ease,  even  where  no  wilful  wrong  was  done,  unless  the  tak- 
ing of  the  coal  out  by  the  plaintiff 's  entry  was  regarded  as  such. 
But  even  then,  we  cannot  avoid  feeling  that  there  is  a  taint  of 
arbitrariness  in  such  a  mode  of  calculation,  because  it  does  not 
truly  mete  out  just  compensation.  5  M.  &  W.  351 ;  9  Id.  672 ;  3 
Queen's  B.  283;  and  see  28  Eng.  L.  &  E.  175.  We  prefer  the 
rule  in  Wood  v.  Morewood,  3  Queen's  B.  440.  n.,  where  Parke, 
B.,  decided,  in  a  case  of  trover  for  taking  coals,  that  if  the  de- 
fendant acted  fairly  and  honestly,  in  the  full  belief  of  his  right, 
then  the  measure  of  damages  is  the  fair  value  of  the  coals,  as 
if  the  coal-field  had  been  purchased  from  the  plaintiffs.  See  also 
Bainbridge  on  Mines  and  Minerals,  510 ;  17  Pick.  1. 

Where  the  defendant's  conduct,  measured  by  the  standard  of 
ordinary  morality  and  care,  which  is  the  standard  of  the  law, 
is  not  chargeable  with  fraud,  violence,  or  wilful  negligence  or 
wrong,  the  value  of  the  property  taken  and  converted  is  the 
measure  of  just  compensation.  If  raw  material  has,  after 
appropriation  and  without  such  wrong,  been  changed  by  manu- 
facture into  a  new  species  of  property,  as  grain  into  whiskey, 
grapes  into  wine,  furs  into  hats,  hides  into  leather,  or  trees  into 
lumber,  the  law  either  refuses  the  action  of  trover  for  the  nev/ 
article,  or  limits  the  recovery  to  the  value  of  the  original  article. 
6  Hill,  425  and  note ;  21  Barbour,  92 ;  23  Conn.  523 ;  38  Maine, 
174. 

Where  there  is  no  wrongful  purpose  or  wrongful  negligence 
in  the  defendant,  compensation  for  the  real  injury  done  is  the 
purpose  of  all  remedies;  and  so  long  as  we  bear  this  in  mind, 
we  shall  have  but  little  difficulty  in  managing  the  forms  of  ac- 
tions so  as  to  secure  a  fair  result.  If  the  defendant  in  this  ease 
was  guilty  of  no  intentional  wrong,  he  ought  not  to  have  been 
charged  with  the  value  of  the  coal  after  he  had  been  at  the  ex- 
pense of  mining  it;  but  only  with  its  value  in  place,  and  with 
such  other  damage  to  the  land  as  his  mining  may  have  caused. 
Such  would  manifestly  be  the  measure  in  trespass  for  mesne 
profits.    7  Casey,  456. 

Judgment  reversed,  and  a  new  trial  awarded. 

Read,  J.,  dissented. 


468  DAMAGES   IN    ACTIONS   FOR   WRONGS. 

GROAT  V.  GILE. 

New  York.  1873.       51  N.  Y.  431, 

In  i\Tay,  1864,  defendants  sold  a  lot  of  sheep  and  lands  to  the 
plaiutiflFs.  At  the  time  of  the  sale,  the  sheep  were  in  two  fields, 
and  were  examined  by  plaintitl's  who  bought  the  whole,  except- 
ing two  bucks  and  a  lame  ewe,  at  $4.00  a  head.  Plaintiffs  paid 
$25.00  on  account,  and  agreed  to  take  them  away  a  few  months 
later.  Before  they  were  taken  away,  the  defendant  sheared  the 
sheep  and  converted  the  wool  to  his  own  use. 

A  verdict  was  directed  for  plaintiffs  but  was  set  aside  by  the 
General  Term  of  the  Supreme  Court. 

LoTT,  Ch.  C.  As  the  verdict  at  the  circuit  in  favor  of  the 
plaintiffs  was  ordered  by  the  judge  who  tried  the  action  on  the 
version  given  by  the  defendant  of  the  contract  or  agreement 
between  the  parties,  it  becomes  necessary  to  refer  to  it  with  par- 
ticularity for  the  purpose  of  ascertaining  whether  his  conclu- 
sion of  law  based  thereon  was  correct. 

The  defendant,  on  his  direct  examination,  after  stating  that 
the  plaintiff's  called  on  him  about  the  20th  of  May,  1864,  and  that 
he  and  the  plaintiff  Groat  had  some  conversation  about  the 
purchase  of  his  sheep  and  lambs,  in  which  he  said  that  he 
wanted  to  sell  the  old  sheep  with  the  lambs,  and  that  he  would 
ask  four  dollars  apiece  for  them,  testified  as  follows:  "They 
concluded  to  go  and  see  the  sheep ;  I  told  them  where  they  were ; 
one  flock  was  near  a  mile  from  the  house ;  they  went  off  together ; 
went  to  the  further  lot  first ;  when  they  came  back  from  this  lot 
I  told  them  where  the  others  were ;  I  told  them  I  did  not  be- 
lieve they  would  like  that  lot ;  they  did  not  look  as  well  as  the 
others,  as  some  of  them  had  lost  their  wool;  then  they  went 
off  to  see  the  other  lot  and  came  back ;  they  asked  me  how  many 
sheep  and  lambs  there  were;  I  told  them  T  could  not  tell  how 
many  there  were;  I  did  not  know  myself;  I  think  I  said 
in  the  neighborhood  of  so  many  sheep  and  so  many  lambs; 
then  they  inquired  about  taking  the  sheep;  it  was  agreed  that 
they  should  take  the  lambs  the  middle  of  September  and  the  old 
sheep  the  first  of  November,  and  pay  me  four  dollars  apiece  for 
sheep  and  lambs ;  this  was  the  contract ;  I  think  I  told  them  I 
would  give  them  a  good  chance ;  something  was  said  about  cut- 
ting the  lambs'  tails  off;  T  told  them  I  thought  it  was  not  pru- 
dent •  I  tried  to  dissuade  them  from  having  it  done ;  that  they 


TROVER   AND    CONVERSION.  469 

had  got  too  large  and  might  die ;  something  was  said  in  answer 
to  it,  but  I  don't  know  just  what;  they  asked  me  if  the  sheep 
were  sound  after  they  had  been  to  see  them;  I  told  them  I  did 
not  consider  them  entirely  sound;  then  they  asked  that  I  should 
doctor  the  sheep  if  they  needed  it;  I  told  them  I  would;  after 
the  talk  they  handed  me  over  twenty-five  dollars  to  bind  the  bar- 
gain, as  they  said;  then  they  went  away."  On  his  cross-exami- 
nation, he  said:  "When  Groat  and  Jacobia  were  there  in  May, 
I  had  sheep  in  two  lots :  the  sheep  I  sold  them  were  in  the  lots 
mentioned ;  I  sold  them  all  that  were  in  these  lots ;  did  not  know 
how  many  sheep  I  had ;  had  not  counted  them  for  some  time ; 
sometimes  they  die ;  told  them  I  did  not  know  how  many  I  had ; 
that  there  would  be  in  the  neighborhood  of  ninety  old  sheep ; 
they  were  to  take  all  the  sheep  in  the  two  lots,  except  two  bucks 
and  a  lame  ewe ;  they  got  all  the  sheep  in  the  two  lots  except  two 
bucks  and  a  lame  ewe ;  they  agreed  to  give  four  dollars  per  head ; 
in  the  bargain  they  were  to  have  all  the  sheep  except  two  bucks 
and  a  lame  sheep ;  I  agreed  to  sell  the  sheep  at  that  price ;  noth- 
ing was  said  about  the  wool ;  they  got  ninety-two  old  sheep  and 
seventy-one  lambs."  And  on  further  redirect  examination  he 
said:  "\Yhen  they  made  the  contract  for  these  sheep,  there  was 
nothing  said  about  the  wool. ' '  And  also :  ' '  Some  of  the  lambs 
came  in  ]\Iarch,  and  so  along,  and  some  were  only  a  few  days 
old ;  some  time  in  August  is  the  usual  and  proper  time  for  tak- 
ing lambs  from  sheep ;  they  had  not  been  separated  from  the 
sheep  on  the  nineteenth  of  May ;  the  lambs  were  in  no  condition 
to  be  separated  from  the  sheep,  at  that  time,  without  ruining  the 
lambs." 

The  preceding  statement  of  the  defendant's  evidence  contains 
all  that  relates  to  the  negotiation  and  making  of  the  agreement, 
and  fully  justifies  the  construction  given  to  it  by  the  learned 
judge  at  the  circuit.  It  is  clear  that  the  plaintiffs  intended  to 
buy  of  the  defendant,  and  that  it  was  his  intention  to  sell  them 
all  of  the  sheep  and  lambs  that  were  running  in  the  two  lots  of 
land  referred  to  by  him  (except  two  bucks  and  a  lame  ewe,  as  to 
the  identity  of  which  there  was  no  question),  at  four  dollars  per 
head,  and  that  no  further  or  other  designation  or  selection  was 
contemplated.  All  the  parties  understood  what  particular  sheep 
and  lambs  were  intended  to  be  sold,  and  there  is  no  doubt 
that  these  were  suf^ciently  identified.  Indeed,  that  fact  does  not 
appear  to  have  been  disputed  on  the  trial.    Under  such  circum- 


470  DAMAGES   IN   ACTIONS   FOR    WRONGS. 

stances,  when  the  terms  of  the  sale  were  agreed  on  and  the  pay- 
ment of  twouty-tive  doUars  was  made  to  the  defendant  on  ac- 
count of  the  purchase-money  by  the  phiintift's,  their  liability  be- 
came fixed  for  the  balance,  which  was  ascertainable  by  a  simple 
arithmetical  calculation  based  upon  a  count  of  the  sheep  and 
lambs  and  the  price  to  be  paid  per  head  for  them.  No  delivery 
of  them  or  other  act  whatever  in  relation  to  them  by  the  de- 
fendant was  required  or  intended.  The  plaintiffs  were  to  take 
them  without  an  agency  in  delivering  them  on  the  part  of  the  de- 
fendant, and  they,  from  the  time  the  agreement  was  made, 
became  the  owners  thereof.  The  defendant  subsequently  kept 
them  at  the  risk  of  the  plaintiffs.  Chancellor  Kent,  in  his  Com- 
mentaries, vol.  2,  p.  492,  in  stating  the  rule  governing  sales  at 
common  law,  says:  "When  the  terms  of  sale  are  agreed  on  and 
the  bargain  is  struck  and  everything  that  the  seller  has  to  do 
with  the  goods  is  complete,  the  contract  of  sale  becomes  absolute 
as  between  the  parties,  without  actual  paj^ment  or  delivery,  and 
the  property  and  the  risk  of  accident  to  the  goods  vests  in  the 
buyer. ' '  This  rule  is  modified  by  our  statute  of  frauds  so  far  as 
to  require,  in  certain  cases,  that  a  note  or  memorandum  of  the 
contract  shall  be  made  in  writing  and  subscribed  by  the  parties 
to  be  charged,  or  that  the  buyer  shall  accept  and  receive  a  part 
of  the  property  sold,  or  at  the  time  pay  some  part  of  the  pur- 
chase money;  and  in  such  cases,  he  says,  at  p.  499:  "When  the 
bargain  is  made  and  is  rendered  binding  by  giving  earnest,  or  by 
part  payment,  or  part  delivery,  or  by  a  compliance  with  the 
requisition  of  the  statute  of  frauds,  the  property,  and  with  it  the 
risk,  attach  to  the  purchaser;  but  though  the  seller  has  parted 
with  the  title,  he  may  retain  possession  until  payment."  The 
fact  that  the  number  of  the  sheep  and  lambs  sold  was  not  ascer- 
tained at  the  time  the  terms  of  sale  were  agreed  on  did  not  pre- 
vent the  application  of  the  rule  referred  to  in  this  case.  It  is 
true  that  the  same  learned  jurist,  after  stating  that  "it  is  a  fun- 
damental principle,  pervading  everywhere  the  doctrine  of  sales 
of  chattels,  that  if  goods  of  different  values  be  sold  in  bulk  and 
not  separately  and  for  a  single  price,  or  per  aversionem,  in  the 
language  of  the  civilians,  the  sale  is  perfect  and  the  risk  with  the 
buyer,"  adds,  "but  if  they  be  sold  by  number,  weight  or  measure, 
the  sale  is  incomplete,  and  the  risk  continues  with  the  seller  until 
the  specific  property  be  separated  and  identified."  The  present 
case  is  not  one  of  the  latter  class.     That  rule  has  reference  to  a 


TKOVEB  AND    CONVERSION.  471 

sale,  not  of  specific  property  clearly  ascertained,  but  of  such  as  is 
to  be  separated  from  a  larger  quantity,  and  is  necessary  to  be 
identified  before  it  is  susceptible  of  delivery.  The  rule  or  prin- 
ciple does  not  apply  where  the  number  of  the  particular  articles 
sold  is  to  be  ascertained  for  the  sole  purpose  of  ascertaining  the 
total  value  thereof  at  certain  specified  rates  or  a  designated  fixed 
price.  This  distinction  is  recognized  in  Crofoot  v.  Bennett,  2 
Comst.  258 ;  Kimberly  v.  Patchin,  19  N.  Y.  330 ;  Bradley  v. 
Wheeler,  44  id.  495.  The  sale  in  question  was  in  fact  of  a  par- 
ticular lot  of  sheep  and  lambs,  and  not  of  a  certain  undesignated 
number  to  be  selected  and  delivered  at  a  future  time,  and  the 
postponement  of  the  time  for  taking  them  away  did  not  prevent 
the  title  passing  to  the  plaintift's. 

A  sale  of  a  specified  chattel  may  pass  the  property  therein  to 
the  vendee  and  vest  the  title  in  him  without  delivery.  (See 
Chitty  on  Contracts,  8th  American  ed.,  p.  332,  and  Terry  v, 
Wheeler,  25  N.  Y.  520.) 

All  the  parties  appear  to  have  understood  the  transaction,  at 
the  time  it  took  place,  as  a  present  absolute  sale  and  change  of 
title.  What  was  said  about  cutting  the  lambs'  tails  off  and  doc- 
toring the  sheep,  if  they  needed  it,  is  evidence  of  such  under- 
standing, and  there  is  nothing  in  what  is  said  to  have  been  the 
agreement  about  taking  them  away  inconsistent  with  it.  That 
gave  the  plaintiffs  the  privilege  of  leaving  them  in  the  defend- 
ant's pasture  till  the  time  specified  for  taking  them  away,  but 
did  not  deprive  them  of  the  right  to  take  them  before,  if  they 
chose  to  do  so.  The  remark  of  the  defendant  at  the  time  to  the 
plaintiffs,  that  he  "would  give  them  a  good  chance,"  shows  that 
such  w^as  its  object  and  intention.  It  is  proper,  moreover,  to 
consider  the  statement  in  reference  to  such  agreement  in  connec- 
tion with  what  had  been  previously  testified  to  by  the  plaintiffs, 
and  w^hich  was  not  denied  by  the  defendant,  and  therefore  im- 
pliedly admitted,  to  the  effect  that  Groat,  one  of  the  plaintiffs, 
before  going  to  look  at  the  sheep  and  lambs,  had  stated  to  the 
defendant  that  he  had  no  pasture  for  them,  to  which  he  replied 
that  he  had  lots  of  pasture  and  would  keep  them  for  the  plain- 
tiffs if  they  purchased,  and  that  they,  after  looking  at  them,  had 
stated  to  him  that  they  would  take  them  at  the  price  named,  if 
the  parties  could  agree  upon  the  time  for  keeping  them.  Con- 
sidered in  that  connection,  it  is  clear  that  the  agreement  was 
one  for  the  plaintiffs'  accommodation  and  an  inducement  to  them 


472  DAiMAGES    IN    ACTIONS    FOK    WRONGS. 

to  make  the  purchase  at  the  price  asked,  which  had  been  fixed 
irrespective  of  their  subsequent  pasturage  on  the  defendant's 
land.  It  affords  no  ground  or  warrant  for  saying  that  the  de- 
fendant, during  the  time  they  were  so  kept,  intended  to  assume 
and  bear  all  risks  incident  to  a  continuance  of  his  ownership 
of  them,  and  consequently  that  the  purchase-money  receivable 
by  him  should  depend  on  the  number  that  should  be  living  at 
the  time  specified  or  limited  for  that  purpose.  On  the  contrary, 
the  fact  that  the  price  at  which  they  were  sold,  was  that  named 
by  him  when  the  first  application  to  him  to  sell  them  was  made, 
without  reference  to  the  question  of  the  future  keeping  of  them 
in  his  pasture,  and  the  other  circumstances  attendant  on  the 
transaction,  as  stated  by  him,  clearly  shows  that  such  was  not 
his  intention. 

It  follows,  from  what  has  been  said,  that  there  was  no  error 
in  the  ruling  of  the  judge  that  the  title  to  the  sheep  passed  to 
the  plaintiffs  immediately  upon  the  completion  of  the  contract 
and  the  payment  of  the  twenty-five  dollars  by  them.  That  nec- 
essarily carried  with  it  the  right  to  the  wool  on  them,  it  being 
shown  that  there  was  no  reservation  thereof  or  anything  said 
about  it  during  the  negotiation  or  at  the  time  the  contract  was 
made.  It  is  not  a  mere  presumption,  as  stated  in  the  prevailing 
opinion  in  the  Supreme  Court,  that  the  parties  "intended,  in 
the  absence  of  evidence  to  the  contrary,  that  the  title  to  the  wool 
should  follow  the  title  to  the  sheep. "  As  was  well  said  by  Justice 
Ingalls  in  his  dissenting  opinion:  "When  the  sheep  were  sold 
the  wool  was  growni  and  was  a  part  of  the  sheep,  adding  to  their 
value,"  and  there  is  no  reason  or  principle  for  saying  that  such 
particular  part  did  not  pass  to  the  purchaser  with  the  rest  of 
the  animals.  The  sale  was  of  the  entire  animal  and  not  of  dif- 
ferent parts  or  portions  constituting  it,  or  of  what  it  was  formed. 

Assuming,  then,  that  the  legal  effect  of  the  agreement  of  the 
parties,  as  testified  to  by  the  defendant  himself,  was  to  vest  the  '^ 
title  to  the  wool  in  the  plaintiffs,  it  was  clearly  incompetent  to 
show  a  custom  in  Columbia  county  where  the  transaction  took 
place,  that  the  wool  of  sheep  sold,  under  the  circumstances  dis- 
closed, does  not  go  to  the  purchaser.  (See  Wheeler  v.  New- 
bould,  16  N.  Y.  392.  401 :  Higgins  v.  Moore,  34  id.  417;  Bradley 
V.  Wheeler,  44  id.  495.) 

There  were  several  offers  of  evidence  by  the  defendant  which 
were  rejected  by  the  court.     Among  them  were  the  following: 


TROVER  AND  CONVERSION.  473 

1st.  That  the  plaintiff,  Groat,  on  a  previous  occasion,  purchased 
a  number  of  sheep  and  lambs  of  the  defendant  under  an  ar- 
rangement precisely  similar  to  the  present,  and  that  he  did  not 
claim  the  wool ;  2d.  That  the  plaintiffs  admitted  to  a  witness,  on 
being  offered  $100  for  their  bargain  with  the  defendant  and  to 
take  the  sheep  and  lambs  off  their  hands,  allowing  the  defendant 
to  have  the  wool,  refused  the  offer  and  said  that  the  sheep,  with- 
out the  wool,  were  worth  more  money  than  the  offer;  and  3rd. 
That  the  plaintiff.  Groat,  admitted  that  he  did  not  understand 
he  had  bought  the  wool  in  question,  or  think  of  making  any  claim 
to  it  until  his  co-plaintiff  suggested  that  they  could  hold  it. 

These  were  properly  excluded.  It  was  immaterial  to  the 
present  controversy  what  the  plaintiffs,  or  either  of  them,  had 
claimed  of  the  defendant  under  a  previous  sale.  Their  legal 
rights  could  not  be  controlled  under  the  present  contract  by  a 
failure  to  demand  what  they  were  entitled  to  imder  a  previous 
one,  and  it  cannot  be  held  that  the  wool,  under  this  agreement, 
was  excepted  from  the  operation  of  the  sale,  because  one  of  the 
plaintiffs  did  not  assert  his  rights  under  another,  and  it  could 
not  aid  in  determining  what  the  contract  in  dispute  was,  whether 
or  not  the  purchase  of  the  sheep  was  so  profitable  as  to  cause 
the  plaintiffs  to  reject  the  offer  made  them  for  their  bargain. 
Nor  could  the  understanding  of  one  of  the  plaintiffs,  as  to  the 
question  whether  he  had  bought  the  wool  or  not,  alter  the  effect 
of  the  transaction  or  the  contract  actually  entered  into.  What 
he  in  fact  did  buy  was  the  question,  and  that  did  not  depend  on 
what  he  understood,  but  on  the  agreement.  The  defendant  was 
also  asked  what  was  the  value  of  the  sheep  without  the  wool 
under  the  arrangement  he  had  testified  to.  That  question  was 
properly  excluded ;  the  inquiry  was  wholly  irrevalent.  The  par- 
ties could  make  such  agreement  as  they  saw  fit,  and  it  was 
immaterial  whether  the  defendant  sold  the  property  in  ques- 
tion for  more  or  less  than  it  was  worth,  in  the  absence  of  any 
fraud  or  other  evidence  affecting  its  validity. 

There  was  a  request  to  charge  the  jury  that  if  the  statement 
of  the  defendant  was  correct,  then  the  sum  of  $25.00  paid  by 
the  plaintiffs  was  merely  paid  to  bind  the  bargain  and  take  the 
contract  out  of  the  statute  of  frauds,  and  that  the  title  to  the 
sheep  did  not  thereby  pass  absolutely  to  the  plaintiffs.  This 
was  refused,  and  what  has  already  been  said  as  to  the  legal  effect 
of  that  statement,  shows  that  such  refusal  was  correct. 


474  DAMAGES   IN   ACTIONS   FOR   WRONGS. 

The  court  was  then  asked  by  the  defendant  to  submit  the  fol- 
lowing questions  to  the  jury: 

1st.  Whether  the  contract  in  suit  was  executed  or  executory ; 
whether  it  was  the  intention  of  the  parties  that  the  title  to  the 
sheep  should  pass  to  the  plaintiffs  immediately  upon  the  mak- 
ing of  the  contract  or  at  some  future  period. 

2d.  Whether  the  defendant,  upon  the  making  of  this  contract, 
intended  to  sell  or  the  plaintiffs  to  buy  the  wool  in  question  in 
this  suit ;  and  on  his  refusal  so  to  do,  and  after  proper  exceptions 
were  taken,  he  was  requested  to  charge  the  jury  that  if  the  con- 
tract was  executory  and  it  was  not  the  intention  to  pass  the  title 
to  the  sheep  until  delivery  and  payment,  then  the  wool  sheared 
from  the  sheep,  before  they  were  actually  deliverd  and  paid  for 
belonged  to  the  defendant.  This  was  also  refused  and  an  excep- 
tion was  taken  to  such  refusal. 

There  was  no  error  to  submit  those  questions  or  give  that  in- 
struction to  the  jury.  They  all  involved  the  submission  of  mat- 
ters of  law  to  their  consideration  and  determination.  The  court 
had  previously  decided  that  the  terms,  nature  and  effect  of  the 
contract  should  be  determined  and  controlled  by  the  defendant's 
statement,  or  version  of  it,  which  was  the  most  favorable  view 
in  which  it  could  be  considered  for  him.  The  case  was  thus  sub- 
stantially one  in  which  there  was  no  dispute  of  facts  as  to  the 
terms  of  the  agreement,  and  it  therefore  became  a  question  of 
law  to  be  determined  by  the  court  whether  the  contract  was  ex- 
ecuted or  executory,  and  what  was  the  intention  of  the  parties 
(to  be  ascertained  from  the  contract)  as  to  the  nature,  extent  and 
effect  of  the  sale. 

The  only  remaining  question  to  be  considered  relates  to  the 
rule  of  damages  laid  down  by  the  court,  which  he  stated  to  be 
"the  highest  market  price  of  wool  between  the  time  of  the  de- 
mand and  the  time  of  trial,  with  interest  from  the  time  of  the 
demand." 

It  may  be  questionable  whether  the  instruction  as  to  the  right 
to  recover  interest  is  correct ;  and  I  understand,  from  the  points 
of  the  counsel  of  the  defendant,  that  he  only  makes  objection 
on  this  appeal  to  that  portion  of  the  charge.  That  question  was 
not  presented  by  his  exception,  which  was  to  the  entire  instruc- 
tion and  not  to  the  allowance  of  interest  only.  The  part  allow- 
ing a  recovery  for  the  highest  market  value  between  the  conver- 
sion and  the  time  of  trial,  was  held  by  us  in  Lobdell  v.  Stowell, 


TROVER  AND  CONVERSION.  475 

(decided  at  the  September  term,  1872,  to  be  the  proper  rule  or 
measure  of  damages  or  compensation,  on  the  authority  of 
Romaine  v.  Van  Allen,  26  N.  Y.  309 ;  Burt  v.  Butcher,  34  id.  493 ; 
Markham  v.  Jaudon,  42  id.  235).  There  was,  therefore,  no 
ground  of  complaint  to  that  portion  of  the  charge.  The  excep- 
tion being  to  that  as  well  as  to  the  portion  relating  to  the  interest 
was  too  broad  and  consequently  not  well  taken,  and  is  not  avail- 
able as  a  ground  for  setting  aside  the  verdict  in  favor  of  the 
plaintiffs  and  granting  a  new  trial. 

The  result  of  the  views  above  expressed  is,  that  the  order  of 
the  General  Term  granting  such  new  trial  should  be  reversed, 
and  judgment  must  be  ordered  against  defendant  on  the  verdict 
with  costs. 


All  concur. 


Order  reversed  and  judgment  accordingly. 


BATEMAN  v.  RYDER. 

Tennessee,  1901.    106  Tenn.  712. 

Wilkes,  J.  This  is  an  action  of  trover  brought  by  a  mother 
against  her  daughter  and  her  husband  for  the  conversion  of  a 
guitar,  four  pictures,  and  a  trunk  containing  clothing  and  manu- 
scripts of  prose  and  poetry  composed  by  the  plaintiff's  former 
husband. 

The  action  was  commenced  before  a  justice  of  the  peace,  and 
the  damages  were  laid  at  $500.  There  was  a  trial  before  the 
court  and  a  jury,  on  appeal  from  the  justice,  when  there  were 
verdict  and  judgment  for  $200,  and  defendants  have  appealed  to 
this  court. 

The  first  three  assignments  go  to  the  measure  of  damages. 

Testimony  was  admitted  to  show  a  special  value  to  plaintiff  of 
the  articles  because  they  were  gifts  from  her  former  husband, 
and  because  of  the  associations  connected  with  them.  It  is  said 
this  was  erroneous. 

It  is  said  the  court  charged  the  jury  that,  in  fixing  the  value  of 
the  property,  they  should  consider  the  plaintiff's  relations  to  the 
same. 

What  the  court  did  charge  on  this  point  was  "that  the  jury 
must  determine  from  all  the  evidence  on  that  point  what  would 


476  DAMAGES   IN   ACTIONS   FOR   WRONGS. 

be  a  fair  and  reasonable  value  for  the  property,  considering 
plaintiff's  relation  to  the  same  and  the  rights  of  property." 

The  court,  upon  request,  refused  to  charge  that,  the  action 
being  in  trover  for  the  conversion  of  property,  the  measure  of 
damages  was  tlie  actual  value  of  the  property. 

These  assigments  may  all  be  treated  together. 

In  actions  of  trover  for  the  conversion  of  personal  property,  as 
a  general  rule  the  measure  of  damages  is  the  market  or  actual 
value  of  the  property  at  the  date  of  the  conversion.  26  Am.  & 
Eng.  Enc.  Law,  818,  and  authorities  there  cited.  But  damages 
beyond  the  actual  value  of  the  property  converted  have  been  al- 
lowed the  plaintiff  when  he  has  been  subjected  to  some  special 
loss. or  injury.  26  Am.  &  Eng.  Enc.  Law,  849.  "One  criterion  of 
damages  is  the  actual  value  to  him  who  owns  it,  and  this  is  the 
rule  when  the  property  is  chiefly  or  exclusively  valuable  to  him ; 
such  articles,  for  instance,  as  family  pictures,  plate,  and  heir- 
looms. These  should  be  valued  with  reasonable  consideration  of, 
and  sympathy  with,  the  feelings  of  the  owner."  3  Sutherland 
on  Damages  p.  476;  Suydam  v.  Jenkins,  3  Sandf.  (N.  Y.)  620; 
Spicer  v.  Waters,  65  Barb.    (N.  Y.)  227. 

In  Hale  on  Damages  p.  182  §  76,  it  is  said:  "When  property 
has  a  peculiar  value  to  the  owner,  such  as  it  has  to  no  other  per- 
son, or  when  it  cannot  be  exactly  replaced  by  other  goods  of  like 
kind,  the  actual  value  to  the  o^\^ler,  and  not  the  market  value,  is 
the  measure  of  com,pensation. " 

The  testimony  shows  that  the  four  pictures  were  oil  paintings 
bought  in  Italy  by  the  plaintiff's  husband  at  a  cost  of  $500,  and 
presented  to  her  while  traveling,  and  were  valuable  intrinsically 
as  well  as  from  association ;  that  the  original  cost  of  the  guitar 
was  $50,  and  it  was  highly  prized  for  its  associations;  that  there 
was  some  considerable  clothing  in  the  trunk,  besides  a  lot  of 
manuscript  productions,  in  prose  and  verse,  of  plaintiff's  hus- 
band, which  had  never  been  published,  and  probably  could  not  be 
reproduced.  There  is  evidence,  on  the  other  hand,  that  the  pic- 
tures were  not  well  preserved ;  that  their  frames  were  dilapidated ; 
that  they  would  probably  bring  about  $20  at  auction,  and  that 
the  guitar  would  perhaps  sell  for  $5 ;  that  the  clothing  was  worn 
and  old,  and  of  no  real  value ;  and  that  the  manuscripts  were  of 
no  value  whatever.  We  think  the  court  gave  the  proper  instruc- 
tions as  to  the  feature  of  damages,  and,  while  we  would  have  been 


TROVER  AND  CONVERSION.  477 

better  satislied  with  a  smaller  judgment,  there  is  ample  evidence 
to  support  the  amount  given.     *     *     * 

The  judgment  of  the  court  heloiv  is  affirmed  with  costs. 


BARKER  V.  LEWIS. 

Connecticut,  1905.     78  Conn.  198. 

Appeal  from  Court  of  Common  Pleas,  New  Haven  County. 

Action  for  conversion  of  household  furniture  and  personal  ef- 
fects.   From  a  judgment  for  plaintiffs,  defendant  appeals. 

Prentice,  J.  The  plaintiffs  delivered  to  the  defendant,  as  a 
warehouseman,  for  storage,  certain  household  furniture  and  per- 
sonal effects.  This  action  was  brought  to  recover  damages  for 
conversion.  Judgment  having  been  rendered  for  the  plaintiffs 
upon  the  verdict  of  a  jury,  the  defendant  appealed;  assigning 
various  reasons  of  appeal,  which,  after  elimination  and  consolida- 
tion, are  in  its  brief  reduced  to  four  claims  of  error.  The  most 
comprehensive  and  important  of  these  involves  a  consideration  of 
the  rule  for  the  assessment  of  damages.  The  property  in  ques- 
tion included,  as  was  claimed,  certain  family  records,  pictures, 
photographs,  heirlooms,  and  other  articles  of  peculiar  value  to 
the  plaintiffs.  With  respect  to  these  articles  the  court  gave  in- 
structions in  the  language  of  Green  v.  Boston  &  L.  R.  Co.,  128 
Mass.  222,  35  Am.  Rep.  370,  of  which  no  complaint  is  made. 
The  remaining  property  was  household  furniture  and  effects,  in- 
cluding books,  all  claimed  to  have  been  purchased  by  or  pre- 
sented to  the  plaintiffs  when  new  for  use  by  them  in  house- 
keeping, and  in  fact  so  used  by  them  in  their  home  in  New 
Haven  until  the  time  that  they  were  stored  with  the  defendant 
upon  the  occasion  of  their  having  temporarily  broken  up  house- 
keeping to  go  into  the  country.  The  defendant  claimed  that  the 
measure  of  the  plaintiffs'  recovery  for  these  articles  was  their 
fair  market  value  at  the  time  and  place  of  conversion,  with  law- 
ful interest  since  that  date.  It  asked  the  court  to  so  charge,  and 
sought  by  the  introduction  of  evidence  to  show  that  there  was 
a  secondhand  market  for  such  things  in  New  Haven,  and  pre- 
sumably, although  no  definite  offer  was  made,  to  follow  up  that 
line  of  inquiry  by  offering  evidence  of  some  sort  claimed  to  show 
the  value  of  articles  of  the  kind  in  question  in  such  market.  The 


478  DAMAGES   IN   ACTIONS   FOR    WRONGS. 

court  was  correct  in  refusing  to  instruct  the  jury  as  requested, 
and  in  excluding  said  testimony. 

The  cardinal  rule  is  that  a  person  injured  shall  receive  fair 
compensation  for  his  loss  or  injury,  and  no  more.  Baldwin 
V.  Porter,  12  Conn.  473.  Commonly  in  cases  of  conversion  the 
loss  is  the  value  of  the  property.  Baldwin  v.  Porter,  supra. 
Commonly  the  value  of  the  property,  as  representing  the  owner's 
loss,  is  its  market  value,  if  it  have  one,  since  thereby  is  indicated 
the  cost  of  replacing.  Hence  the  subordinate  rule  of  general  ap- 
plication appealed  to  by  the  defendant.  But  the  principal  rule, 
which  seeks  to  give  fair  compensation  for  the  loss,  is  the  para- 
moimt  one ;  and  ordinarily,  when  the  subordinate  one  fails  to  ac- 
complish the  desired  result,  it  yields  to  an  exception  or  modi- 
fication. Sutherland  on  Damages,  §12.  It  is  now  generally 
recognized  that  wearing  apparel  in  use,  and  household  goods  and 
effects  owned  and  kept  for  personal  use,  are  articles  which  can- 
not in  any  fair  sense  be  said  to  be  marketable  and  have  a  market 
value,  or  at  least  a  market  value  which  is  fairly  indicative  of 
their  real  value  to  their  owner,  and  of  his  loss  by  being  deprived 
of  them.  So  it  has  been  frequently,  and  we  think  correctly,  held 
that  the  amount  of  his  recovery  in  the  event  of  conversion  ought 
not  to  be  restricted  to  the  price  which  could  be  realized  by  a  sale 
in  the  market,  but  he  should  be  allowed  to  recover  the  value  to 
him  based  on  his  actual  money  loss,  all  the  circumstances  and 
conditions  considered,  resulting  from  his  being  deprived  of  the 
property;  not  including,  however,  any  sentimental  or  fanciful 
value  he  may  for  any  reason  place  upon  it.  Denver,  etc.,  R.  Co. 
V.  Frame,  6  Colo.  385 ;  McMahon  v.  City  of  Dubuque,  107  Iowa, 
62,  77  N.  W.  517,  70  Am.  St.  Rep.  143 ;  Int.  Ry.  Co.  v.  Nicholson, 
61  Tex.  553 ;  Fairfax  v.  New  York  C.  &  H.  R.  Co.,  73  N.  Y.  167, 
29  Am.  Rep.  119 ;  Sell  v.  Ward,  81  111.  App.  675 ;  Joyce  on  Dam- 
ages, §  1037 ;  Sutherland  on  Damages,  §  1117 ;  Sedgwick  on  Dam- 
ages, §  251. 

The  court  in  one  portion  of  its  charges  stated  this  rule  to  the 
jury  in  substance,  in  so  far,  at  least,  as  was  required  by  any  claim 
on  the  part  of  the  plaintiffs.  In  another  place,  however,  it  was 
less  careful  in  its  language,  and,  while  doubtless  intending  to  ex- 
press the  same  principles  elsewhere  stated,  it  used  the  following 
language:  "The  measure  of  damages  in  this  case,  gentlemen, 
relates  to  the  actual  value  of  the  property  at  the  time  of  its  con- 
version ;  and  that  is  to  be  determined  from  the  cost  of  the  prop- 


TROVER  AND  CONVERSION,  479 

erty,  the  extent  to  which  it  has  been  used,  and  its  condition  at 
the  time  of  the  conversion. ' '  This  was  an  altogether  misleading 
statement.  It  selected  three  of  the  many  factors  which  might 
enter  into  the  consideration  of  the  question  of  fair  compensation, 
made  them  the  sole  and  decisive  ones,  and  ignored  all  others. 
Under  such  instructions  a  jury  might  well  go  far  astray,  and  we 
are  unable  to  say,  from  a  study  of  the  charge  as  a  whole,  that  the 
error  here  committed  was  elsewhere  corrected  so  that  the  jury  ap- 
proached the  inquiry  as  to  the  amount  of  damages  to  be  award- 
ed with  a  correct  understanding  of  the  law. 

The  case  of  Sanford  v.  Peck,  63  Conn.  486,  27  Atl.  1057,  is  re- 
lied upon  by  the  defendant  as  supporting  its  contention  that  the 
market  value  furnishes  the  measure  of  recovery  in  cases  of  this 
character.  The  question  here  made  was  not  presented  or  passed 
upon  in  that  case.  The  plaintiff  claimed  to  recover  the  market 
value  and  his  right  to  do  so  was  conceded.  The  question  ad- 
judicated was  one  as  to  the  admissibility  of  certain  evidence  as 
probative  of  the  market  value. 

The  complaint  alleges  that  the  defendant  converted  the 
property  in  question  to  its  own  use  and  sold  the  same  without 
authority  from  the  plaintiffs  and  unlawfully.  The  defendant 
contends  that  the  plaintiffs  by  this  averment  restricted  their  right 
to  prove  a  conversion  to  one  by  a  sale,  and  complains  of  the  in- 
structions of  the  court  to  the  effect  that  one  might  be  established 
by  proof  of  either  an  unlawful  sale  or  a  demand  for  a  return 
and  a  refusal.     The  instructions  were  correct. 

As  a  new  trial  must  be  granted,  the  remaining  complaints  of 
error  do  not  require  attention. 

There  is  error,  and  a  new  trial  is  granted.    All  concur. 


WHITE  V.  YAWKEY. 

Alabama,  1896.     108  Ala.  270. 

This  was  an  action  of  trover,  brought  by  appellee  against  the 
appellants,  to  recover  damages  for  the  conversion  by  them  of 
certain  timber,  alleged  to  have  been  cut  from  the  land  of 
the  plaintiff.  Defendants  plead  that  the  conversion  was  inno- 
cent and  unintentional. 

Head,  J.  The  case  was  tried  in  the  lower  court  upon  the 
second  count  of  the  complaint,  which  was  in  trover,  and  claimed 


480  DAMAGES   IN    ACTIONS   FOli    WRONGS. 

damages  "for  the  eonvereion  of  100  pine  logs  cut  and  taken 
away"  from  the  lands  of  the  plaintiff.  The  material  facts  are 
that,  within  a  year  prior  to  the  commencement  of  the  suit,  one 
Jack  IJrewer  cut  the  pine  logs  from  the  timber  lands  belonging 
to  the  plaintiff,  and  sold  them  to  the  defendants  to  be  delivered 
on  the  banks  of  Pea  river,  where  he  did  in  fact  deliver  them; 
and  that  neither  he  nor  the  defendants  knew  at  the  time  the 
cutting  was  done  that  trespasses  were  being  committed  on  the 
plaintiff's  property,  this  fact  not  having  been  discovered  until 
a  survey  was  made,  some  time  after  the  acts  complained  of  had 
been  performed.  The  defendants  disposed  of  the  logs,  which 
were  worth  four  cents  per  foot,  at  Pea  river.  *  «  *  With 
a  view  to  mitigating  the  damages,  the  defendants  offered  to 
prove  the  value  of  the  logs  prior  to  their  removal  from  the  land, 
accompanying  the  offer  with  the  statement  to  the  court  that  they 
expected  to  prove  the  logs  were  worth  materially  more  after  be- 
ing transported  to  and  placed  on  the  banks  of  Pea  river  than 
they  were  before  such  removal.  The  court  refused  to  allow  this 
proof  to  be  made,  and  to  the  ruling  an  exception  was  duly  re- 
served. This  presents  the  single  question  of  merit  to  be  decided 
upon  the  appeal. 

It  will  be  observed  from  the  foregoing  statement,  that  the 
record  makes  the  case  of  a  conversion  by  purchasers,  innocent 
of  wrongdoing,  from  an  inadvertent  trespasser,  who,  by  the  ex- 
penditure of  time,  labor,  and,  doubtless,  money,  had  enhanced 
the  value  of  the  pine  logs,  after  their  severance  from  the  free- 
hold and  transformation  into  chattels.  The  effect  of  the  rul- 
ing of  the  circuit  court  was  to  exclude  from  the  jury  all  evidence 
upon  the  subject  of  value,  except  that  confined  and  limited  to 
the  place  of  delivery  to  the  defendants,  and  thereby  to  neces- 
sitate a  verdict  for  the  value  at  that  place,  as  being  the  only  au- 
thorized measure  of  damages,  justified  by  the  facts  of  the  case, 
*  *  *  It  is  sufficient  to  say  that  the  modem  authorities  are 
practically  unanimous  in  holding  that  the  rule  of  just  compensa- 
tion for  the  injury  sustained,  which  is  the  ideal  measure  of 
actual  damages,  does  not  require  the  assessment,  against  an 
inadvertent  trespasser,  of  the  accession  to  the  value  of  a  chat- 
tel which  his  labor  has  produced,  but  that  he  is  entitled  to  an 
abatement  therefor  from  the  enhanced  value.  (Citing  authori- 
ties.) The  same  rule  prevails  when  trover  is  brought  against 
the  unintentional  trespasser's  innocent  vendee,  who  is  treated 


TROVER  AND  CONVERSION.  481 

as  standing  in  the  shoes  of  his  vendor.  (Citing  authorities.) 
It  is  no  answer  to  this  to  say  that  the  plaintiff  might  have 
brought  detinue  for  the  logs  wherever  he  might  have  found 
theui,  short  of  a  change  of  identity,  and  thereby  have  recovered 
them  in  specie  after  their  value  had  been  enhanced.  In  detinue 
the  title  prevails,  and  the  question  of  damages  is  not  considered. 
If  a  party  aggrieved  elects  to  bring  the  equitable  action  of 
trover,  the  assessment  of  damages  may  be  so  adjusted  as  to  com- 
pensate the  plaintiff  for  his  injury,  without  paying  him  a 
premium,  or  depriving  an  innocent  party  of  that  which  he  has 
in  good  faith  added  to  the  chattel.  Weymouth  v.  Railway  Co., 
17  Wis.  550,  84  Am.  Dec.  763.  The  rule  is  different  if  the  tres- 
pass is  wilful  or  in  bad  faith.     (Citing  authorities.) 

The  authorities  do  not  agree  upon  the  question  whether,  in 
trover  against  an  inadvertent  trespasser,  or  his  innocent  vendee, 
for  severed  portions  of  the  realty,  the  rule  is  to  allow  the  value 
of  the  property  in  place,  as  if  it  had  been  purchased  in  situ  by 
the  defendant,  at  the  fair  market  value  of  the  district — as,  for 
instance,  the  value  of  timber  standing,  or,  for  coal  or  ore  mined, 
the  value  in  place — or  whether  the  value  to  be  taken  as  the  basis 
of  recovery  is  that  of  the  property  converted  immediately  after 
severance,  when  it  becomes  a  chattel.  The  case  of  Wood  v.  More- 
wood,  3  Q.  B.  440  (which  is  regarded  as  conflicting  with  the 
earlier  English  cases),  is  the  leading  English,  and  Forsyth  v. 
Wells,  41  Pa.  291,  80  Am.  Dec.  617,  subsequently  criticised  in  that 
state,  is  one  of  the  leading  American  cases  supporting  the  rule 
first  stated,  and  they  have  been  frequently  followed.  Many 
cases  which  are  often  cited  in  favor  of  the  same  rule  may  be 
distinguished  by  noting  that  they  were  not  actions  of  trover,  or 
that  they  arose  in  states  which  have  abolished  forms  of  action,  or 
that  the  decisions  were  made  in  proceedings  in  equity  where 
the  courts  were  not  influenced  by  the  technical  rules  governing 
the  various  common-law  actions.  In  this  state,  forms  of  action 
have  not  been  abolished,  and  parties  must  be  here  held  to  the 
legitimate  and  logical  consequences  of  the  particular  action 
which  has  been  instituted. 

Trover  is  brought  for  the  conversion  of  personal  property,  and 
it  would  seem  incongruous  to  say  that  the  damages  could  be 
assessed  upon  the  principle  adopted  in  actions  of  trespass 
quare  claiisum  frcgit,  when  the  gravamen  of  the  complaint  is 
essentially  dift'erent.    Cases  can  be  easily  perceived  in  which  the 


482  DAMAGES    IN    ACTIONS    FOR    WRONGS. 

value  of  the  timber  after  severance  would  very  inadequately  com- 
pensate the  owner  for  the  trespass.  This  would  bo  so  when  the 
trees  were  prematurely  cut,  or  were  valuable  for  shade  and  fruit. 
Under  such  circumstances,  he  may  accommodate  his  selection  of 
a  form  of  action  to  the  necessities  of  the  case,  and  bring  tres- 
pass for  entering  his  land,  and  severing  and  removing  timber 
or  trees,  in  which  case  he  would  recover,  as  actual  damages,  the 
diminished  value  of  the  land,  or,  to  state  it  more  definitely,  the 
value  of  the  trees  standing  and  any  injury  to  the  freehold  by 
reason  of  their  removal.     (Citing  authorities.) 

When  trover  is  brought,  the  trespass  upon  the  land  is,  so  to 
speak,  waived  or  disregarded;  and  when  brought  for  the  con- 
version of  logs  or  trees  as  chattels,  under  the  circumstances  of 
this  case,  the  true  rule,  in  our  opinion,  is  the  second  above  stated, 
according  to  which  the  value  immediately  after  severance,  with 
mterest,  furnishes  the  proper  measure  of  recovery.  (Citing 
authorities. ) 

The  circuit  court  erred  in  rejecting  the  proffered  proof.     * 

For  the  error  in  rejecting  the  evidence  designed  to  mitigate 
the  damages,  *  *  *  ^/j,e  judgment  is  reversed  and  the  cause 
remanded. 


WALLINGFORD  v.  KAISER. 

New  York,  1908.     191  N.  Y.  392. 

Appeal  from  Supreme  Court,  Appellate  Division,  Fourth  De- 
partment. 

Action  against  sheriff  of  Erie  county.  From  a  judgment  of 
the  Appellate  Division,  affirming  a  judgment  for  plaintiff,  the 
defendant  appeals. 

WiLLARD  Bartlett,  J.  The  only  question  which  we  consider 
it  necessary  to  discuss  in  passing  upon  this  appeal  relates  to  the 
measure  of  damages  adopted  by  the  trial  court.  The  action  was 
foi  the  conversion  of  a  number  of  horses  which  were  seized  by 
the  defendant,  assuming  to  act  under  a  warrant  of  attachment  is- 
sued to  him  as  sheriff  of  Erie  county;  the  animals  having  been 
taken  from  a  railroad  train  at  East  Buffalo  while  in  course  of 
transportation  from  Chicago,  111.,  to  Liverpool,  England.  The 
learned  trial  judge  instructed  the  jury  that,  if  the  plaintiff  was 


TROVER  AND  CONVERSION.  483 

entitled  to  recover  at  all,  he  was  entitled  to  recover  the  value  of 
the  horses  in  Liverpool,  less  the  expense  of  transporting  them  and 
putting  them  on  the  market  in  Liverpool  for  sale  and  selling 
them.  No  exception  was  taken  to  this  instruction;  but  counsel 
for  the  appellant  had  previously  disputed  the  correctness  of  the 
rule  thus  laid  down  for  ascertaining  plaintiff's  damages  by  ob- 
jecting to  a  question  as  to  the  value  of  one  of  the  horses  in  Liver- 
pool at  the  time  that  it  would  have  arrived  there  in  due  course  of 
transportation,  and  taking  exception  to  the  decision  of  the  court 
in  overruling  that  objection,  the  court  having  stated  at  the  time 
that  one  objection  to  like  questions  was  sufficient  and  that  the  de- 
fendant need  not  object  to  each  like  question. 

In  actions  for  conversion,  and  actions  of  a  similar  character, 
the  general  rule  is  that  the  value  of  the  property  at  the  place 
of  conversion  is  the  correct  measure  of  damages.  2  Sedgwick 
on  Damages  (8th  Ed.)  §496;  Tiffany  v.  Lord,  65  N.  Y.  310; 
Parmenter  v.  Fitzpatrick,  135  N.  Y.  190;  Fleischmann  v.  Sam- 
uel, 18  App.  Div.  97 ;  Hamer  v.  Hathaway,  33  Cal.  117.  But  this 
rule  is  subject  to  important  qualifications  and  exceptions.  Among 
these  may  be  mentioned  (1)  eases  where  there  is  no  market  value 
for  such  or  like  property  at  the  place  of  conversion.  In  that 
event  resort  is  had  to  evidence  of  market  value  at  the  nearest 
place  where  there  is  a  market.  Keller  v.  Paine,  34  Hun.  167,  176. 
This  may  be  as  far  removed  as  San  Francisco  is  from  the  Isth- 
mus of  Panama  (Harris  v.  Panama  R.  R.  Co.,  58  N.  Y.  660), 
or  halfway  around  the  earth  (Bourne  v.  Ashley,  1  Lowell,  27, 
Fed.  Cas.  No.  1,699).  The  case  last  cited  was  a  libel  in  admiralty 
by  the  owners  of  one  whaling  ship  against  the  owners  of  another, 
both  vessels  hailing  from  New  Bedford,  for  the  conversion  of  a 
whale  in  the  Okhotsk  Sea.  There  being  no  market  price  for 
whales  at  the  place  of  conversion,  the  court  held  that  the  libelants 
were  entitled  to  the  value  of  the  oil  and  bone  at  New  Bedford, 
which  was  the  controlling  market  of  the  country  as  well  as  the 
home  port  of  both  the  whalers,  less  the  expense  of  taking  the  oil 
and  bone  out  of  the  whale  and  getting  it  to  such  port.  (2)  A 
second  class  of  cases,  constituting  an  exception  to  the  rule  that 
the  value  of  the  converted  article  at  the  place  of  conversion  is 
ordinarily  the  true  measure  of  damages,  are  actions  against  com- 
mon carriers,  where  the  goods  are  lost,  destroyed  or  damaged  in 
transit,  in  which  the  damages  recoverable  against  the  carrier  are 
based  on  the  market  value  at  the  point  of  destination.    2  Sedg- 


484  DAMAGES   IN    ACTIONS   FOR    WRONGS. 

wiek  on  Damages  (8th  Ed.)  §844;  Maync  on  Damages,  285; 
tSturgess  v.  Bissell,  46  N.  Y.  462;  Iloldcn  v.  N.  Y.  C.  K.  R.  Co., 
54  N.  Y.  6()2. 

So  far  as  1  have  been  able  to  ascertain,  the  precise  question 
presented  by  this  appeal  does  not  appear  to  have  been  deter- 
mined in  this  state ;  that  is,  whether,  where  property  in  the  cus- 
tody of  a  common  carrier  in  the  course  of  transportation  is  con- 
verted by  a  stranger,  the  owner's  right  of  recovery  is  limited  to 
the  market  value  at  the  place  of  conversion,  or  nearest  market, 
or  may  be  measured  by  the  market  value  at  the  place  of  destina- 
tion, less  the  cost  of  conveyance  thither  and  the  selling  expenses. 
That  the  latter  is  the  only  just  rule  was  strongly  suggested  in 
Suydam  v.  Jenkins,  3  Sandf.  614,  622,  by  Duer,  J.,  in  the  course 
of  what  was  pronounced  an  "extremely  able  opinion"  by  Ra. 
pallo,  J.,  in  Baker  v.  Drake,  53  N.  Y.  211,  224.  Judge  Duer  said : 
"When  the  market  value  is  justly  assumed  as  the  measure  of 
value,  there  are  numerous  cases  in  which  the  addition  of  interest 
would  fail  to  compensate  the  owner  for  his  actual  loss.  It  may 
be  showTi  that,  had  he  retained  the  possession,  he  would  have  de- 
rived a  larger  profit  from  the  use  of  the  property  than  the  in- 
terest upon  its  value,  or  that  he  had  contracted  to  sell  it  to  a 
solvent  purchaser  at  an  advance  upon  the  market  price,  or  that, 
when  wrongfully  taken  or  converted,  it  was  in  the  course  of  trans- 
portation to  a  profitahle  market  where  it  ivould  certainly  have  ar- 
rived; and  in  each  of  these  cases  the  difference  between  the  mar- 
ket value  when  the  right  of  action  accrued,  and  the  advance 
which  the  owner,  had  he  retained  possession,  would  have  realized, 
ought  plainly  to  be  allowed  as  compensatory  damages,  and  as 
such  be  included  in  the  amount  for  which  judgment  is  rendered." 
The  view  of  Judge  Duer,  as  expressed  in  the  passage  which  I 
have  emphasized  by  italics,  was  adopted  by  the  Supreme  Court 
of  Missouri  in  a  well-considered  case  decided  in  1860.  Farwell 
V.  Price,  30  Mo.  587.  Referring  to  the  rule,  as  to  which  some 
doubt  then  existed,  but  which  is  now  well  established,  that  the 
measure  of  damages  in  the  ease  of  a  conversion  by  the  common 
carrier  is  the  market  value  at  the  point  of  delivery,  the  court 
went  on  to  say :  ' '  And  where  the  wrongdoer  is  a  mere  stranger, 
a  trespasser,  it  is  not  easy  to  see  upon  what  ground  he  can  insist 
that  the  value  of  the  property  at  the  place  where  the  conversion 
occurred  shall  be  the  measure  of  damages  to  which  the  owner 
is  entitled.    Such  a  rule  would  in  effect  force  the  owner  to  dispose 


TEOVER  AND  CONVERSION.  485 

of  his  property  in  a  market  not  of  his  own  selection,  and  one 
where,  perchance,  the  property  might  be  valueless. ' '  In  that  case 
the  property  consisted  of  flour  consigned  from  St.  Louis  to  Bos- 
ton, and  was  converted  en  route  by  the  forwarding  agent  at  New 
Orleans.  "Going  no  further  for  illustration  than  the  case  under 
consideration,  we  see,  as  a  matter  of  fact,  that  the  market  value  of 
flour  at  New  Orleans  is  not  at  all  times  the  same  as  at  Boston, 
minus  the  cost  of  transporting  it  from  one  point  to  the  other, 
though  doubtless  any  considerable  disparity  could  not  long  con- 
tinue. Scarcity  of  capital  or  other  circumstances  may  depress 
the  price  of  an  article  in  one  market  below  its  value  in  another, 
after  deducting  the  expense  of  removing  the  article,  though  in  the 
present  condition  of  trade  this  could  not  continue  long.  But  as 
the  price  of  an  article  must  mainly  be  regulated  by  its  value  for 
home  consumption,  and  must  be  so  altogether  if  there  is  no  capi- 
tal engaged  in  its  removal  to  other  places,  the  price  at  the  place  of 
conversion  would  in  most  instances  prove  an  inadequate  compen- 
sation for  the  loss  sustained  by  the  owner." 

This  last  proposition  seems  strictly  correct  as  applied  to  the 
proof  in  the  case  at  bar,  which  showed  that  the  horses  taken  from 
the  railway  train  by  the  sheriff  had  been  selected  at  great  pains 
and  with  special  care  in  reference  to  the  demand  in  the  Liver- 
pool market.  As  may  be  inferred  from  what  has  already  been 
said,  I  think  there  is  and  ought  to  be  an  exception  to  the  gen- 
eral rule  in  trover  that  the  value  of  the  property  at  the  place  of 
conversion  is  the  owner 's  measure  of  damages  in  the  case  of  goods 
converted  by  a  stranger  at  an  intermediate  point  while  in  the 
course  of  transportation,  and  that  where  the  property  when 
wrongfully  taken  is  on  the  way  to  a  profitable  market,  where  it 
would  certainly  have  arrived,  the  owner  is  entitled  to  recover  the 
value  of  the  goods  at  the  place  of  destination,  less  the  cost  of 
carriage  and  the  cost  of  effecting  a  sale  in  that  market.  The  pur- 
pose of  the  law  is  to  afford  just  and  reasonable  compensation 
to  the  mjured  party  for  the  natural  and  proximate  consequences 
of  the  wrongful  act ;  and  this  can  hardly  otherwise  be  accomplish- 
ed in  such  a  case  as  that  which  we  have  presented  for  our  consid- 
eration here.  The  special  damage  which  the  plaintiff  claimed  to 
have  sustained  ])y  reason  of  his  inability  to  sell  the  horses  in  Liv- 
erpool was  distinctly  alleged  in  the  complaint ;  and  the  defend- 
ant's lack  of  information  as  to  the  particular  destination  of 
the  animals  is  not  available  to  him  in  mitigation.     See    Lath- 


486  DAMAGES    IM    ACTIONS    FUH    WKOiNGb. 

ers  V.  Wynian.  76  Wis.  GIG.  The  circuinstnnces  under  which  the 
horses  were  taken  constituted  notice  that  tliey  were  destined  i'or 
sojne  point  bej'ond  East  Buffalo. 

The  ap{>ellant  relies  upon  the  eases  of  Brizsee  v.  Maybee,  21 
Wend.  1-i-l,  and  Spicer  v.  Waters,  G5  Barb.  227  ;  but  in  neither  of 
those  cases  was  the  property  converted  while  in  the  course  of 
transportation.  The  Brizsee  Case  was  an  action  of  replevin  for  a 
quantity  of  saw  logs  which  were  replevied  at  the  mills  of  the  de- 
fendant in  Niagara  coimty.  The  defendant  was  allowed  to  prove 
Avhat  would  have  been  the  value  of  the  stuff  made  from  the  logs 
in  the  Albany  and  Troy  markets  at  the  time  when  it  would  in  the 
ordinary  course  of  business  have  reached  those  cities.  The  old 
Supreme  Court,  per  Cowen,  J.,  held  that  the  ultimate  value  at 
AllDany  or  Troy,  when  in  the  ordinary  course  of  business  the 
boards  would  reach  there,  deducting  the  expense  of  manufactur- 
ing and  the  price  of  transportation,  was  a  proper  topic  of  in- 
quiry, with  a  view  of  ascertaining  the  value  of  the  saw  logs  at  the 
place  where  they  were  replevied,  but  not  for  any  other  purpose. 
In  the  Spicer  case  there  was  a  conversion  of  lumber  in  Lewis 
county,  and  the  trial  judge  charged  the  jury  that  if  the  lumber 
was  to  be  taken  thence  to  the  Troy  market,  and  there  to  be  held 
in  the  plaintiff's  lumber  yard,  they  were  entitled  to  recover  its 
market  value  in  Troy,  less  the  cost  and  risk  of  transportation. 
The  General  Term  of  the  Fifth  District  (Mullin  and  Morgan, 
JJ. ;  Bacon,  J.,  dissenting)  held  that  this  charge  was  erroneous, 
in  view  of  the  general  rule  that  in  an  action  for  the  conversion  of 
personal  property  the  measure  of  damages  was  the  market  value 
at  the  time  and  place  of  conversion,  with  interest  up  to  the  time 
of  trial.  The  prevailing  opinion  shows  that  the  court  deemed 
the  decision  in  Brizsee  v.  Maybee,  supra,  controlling  on  the  ques- 
tion, although,  as  already  suggested,  that  was  not  a  case  of  the 
conversion  of  goods  in  transit. 

I  find  nothing  in  the  reasoning  or  decision  of  these  cases  in  con- 
flict with  the  conclusion  that  the  present  judgment  should  be 
affirmed,  with  costs. 

Vann,  J.  (dissenting).  When  a  sheriff  is  sued,  as  such,  for  an 
official  act  done  in  his  own  county,  and  damages  are  assessed 
against  him  for  the  conversion  of  a  common  kind  of  property, 
they  should  not  be  measured  by  the  market  price  at  a  place  3,000 
miles  away,  but  by  the  market  price  in  the  locality  where  the  act 
of  conversion  took  place.    That  is  the  general  rule,  and  there  is 


TROVER  AND  CONVERSION.  487 

no  occasion  for  an  exception ;  for  there  was  a  home  market,  and 
the  defendant  was  not  a  common  carrier.  A  public  officer,  who 
makes  a  mistake  in  an  effort  to  discharge  an  official  duty  and  is 
required  to  pay  damages  in  consequence,  should  not  be  compelled 
to  visit  foreign  countries  and  import  witnesses  therefrom  in  order 
to  keep  the  damages  within  reasonable  limits.  No  authority  re- 
quires us  to  sanction  proof  of  the  market  price  at  a  remote  place 
on  another  continent,  and  it  is  against  public  policy  to  establish 
a  rule  that  may  call  a  sheriff  far  from  the  county,  and  even  the 
state,  where  his  official  duties  are  to  be  performed.  Evidence 
of  the  market  price  at  no  place  outside  of  the  state  where  the 
owner  was  deprived  of  his  property  should  be  allowed,  and  I  re- 
gret that  a  rule  is  about  to  be  laid  down  which  will  not  only  be 
inconvenient  in  practice,  but  will  frequently  lead  to  injustice. 
As  the  question  is  open  in  this  state,  why  should  we  go  abroad  for 
a  market  price  when  we  have  one  at  home  ?  If  we  can  go  to  Eng- 
land, we  can  go  to  Russia,  China,  or  Australia,  and  to  points 
where  local  conditions  may  temporarily  raise  the  price,  and  where 
tariff  regulations  may  hamper  investigation  and  complicate  the 
question.  In  laying  down  a  rule  to  govern  our  own  citizens,  the 
market  price  established  by  themselves  should  be  sufficient  to 
measure  the  value  of  property  converted  in  this  state.  I  ap- 
prehend that  no  other  rule  will  be  welcome  to  them,  or  regarded 
by  them  as  just  or  right.  Simple  rules  are  the  best,  and  no  excep- 
tion should  be  made  except  to  prevent  injustice. 

Even  where  the  property  is  on  the  way  to  a  better  market,  if 
the  act  is  neither  vindictive  nor  a  violation  of  contract,  future 
profits,  although  reasonably  certain,  should  not  be  awarded,  when 
the  owner  could  purchase  similar  property  at  the  place  of  con- 
version, and  thus  save  prospective  profits  for  himself,  and  the  de- 
fendant from  serious  loss.  Under  such  circumstances  the  home 
market  price  and  interest  is  enough,  without  profits,  cases  against 
common  carriers  excepted,  because  the  law  is  loath  to  allow  them 
any  excuse  for  nondelivery.  American  horses,  raised,  purchased, 
and  converted  in  America,  should  be  valued  according  to  the 
American  markets,  rather  than  the  English,  even  if  they  are  on 
their  way  to  England  when  converted. 

CuLLEN,  C.  J.,  and  Gray,  Haight,  Werner,  and  Hiscock,  JJ., 
concur  with  Wdllard  Bartlett,  J.  Vann,  J.,  reads  dissenting 
opinion. 

Judgment  affirmed. 


■i88  DAMAGES    IN    ACTIONS    FOR    WRONGS. 

"No  doubt  the  true  uononil  rulo  of  diUiiMi^cs.  iu  (rover,  is  the  value 
of  the  ^oods  at  the  time  of  conversion,  witli  interest."  Shaw,  C.  J., 
in  Fo\vh>r  v.  (liliniin,  i;>  Met.  2(;7_. 

Where  defendant  innocently  converted  coal  by  taking  it  from  plain- 
tiff's land,  the  plaintiff  recovered  as  damages  the  value  of  the  coal 
at  the  mouth  of  the  shaft,  less  the  cost  of  conveying  it  from  the  place 
where  it  was  dug  to  the  mouth  of  the  shaft.  McLean  Co.  Coal  Co.  v. 
Long.  SI  111.  359. 

In  Learock  v.  I'axson,  20S  Pa.  W2.  in  a  case  of  the  wrongful  con- 
version of  fluctuating  stock,  the  defendant  was  held  liable  to  account 
to  the  plaintifif  for  the  value  of  the  stock  at  the  highest  rate  which 
it  had  at  any  time  attained  since  the  conversion.  In  Connecticut, 
however,  it  was  held,  in  Ling  v.  Malcom,  77  Conn.  517,  that  the  plain- 
tifif should  "so  act  as  to  make  his  damages  as  small  as  he  reasonably 
could."  The  question  is  at  what  price  could  he  have  re-purchased  the 
stock  after  notice  of  the  unlawful  conversion  and  sale. 

Where  plaintiff  owned  an  ice  cream  and  candy  store,  and  defendant 
got  a  receiver  appointed  illegally,  the  plaintiff's  damages  included 
the  value  of  the  store  at  the  time  the  receiver  was  appointed  and  the 
actual  loss  sustained  by  plaintiff  in  the  suspension  of  her  business. 
Haverley  v.  Elliott,  57  N.  W.  Rep.  1010. 


4.     Replevin. 

WILEY  V.  McGRATH. 

Pennsylvania,  1900.     194  Pa.  498. 

Dean,  J.  Joseph  Wiley,  the  husband  of  plaintiff,  kept  a  livery 
stable  on  Sydenham  street,  in  Philadelphia.  On  the  27th  of 
July,  1894,  by  regular  bill  of  sale,  he  transferred  to  his  wife, 
Elizabeth  Wiley,  four  horses,  some  harness,  two  carriages,  and 
one  coupe,  kept  at  the  stable.  While  the  consideration  expressed 
is  "one  dollar  and  other  good  consideration,"  it  is  not  disputed 
that  she  paid  a  full  price  for  the  articles.  The  wife  took  posses- 
sion of  the  property,  and  undertook  to  carry  on  the  stable.  She 
gave  notice  generally  of  her  purchase,  and  within  a  few  days, 
having  occasion  to  call  upon  Frank  McGrath,  who  conducted  a 
stable  on  Seventeenth  street,  she  exhibited  to  him  the  bill  of 
sale,  and  also  showed  it  to  young  Frank  C.  McGrath,  this  defend- 
ant, who  is  a  cousin  of  Frank  McGrath,  and  assisted  in  the  stable 
work.  Her  husband,  it  appeared,  went  to  Ireland  immediately 
after  the  sale,  from  whence  he  did  not  return  until  about  the  1st 
of  December  following.     On  the  night  of  December  7th  two  of 


REPLEVIN.  489 

the  horses,  some  harness,  and  a  coach,  all  of  which  were  embraced 
in  the  bill  of  sale,  were  taken    from  the    wife's   stable   by  the 
husband  and  sold  to  defendant.    When  she  made  search  for  her 
property,  she  called  at  the  McGrath  stable,  but  both  McGraths 
feigned  ignorance,  and  promised  their  aid  in  searching  for  the 
property.     Five  days  later  she  discovered  it  in  the  McGrath 
stable.     It  had  been  purchased  ostensibly  by  defendant  from  the 
husband,  by  regular  bill  of  sale.    Plaintiff  at  once  replevied  it. 
Defendant  gave  to  the  sheriff  a  claim-property  bond,  and  retained 
possession.     In  the  issue  made  up,  he  pleaded  non  cepit,  and  on 
this  plea  the  case  went  to  trial.     The  learned  trial  .judge  ruled 
that  the  plea  admitted  property  in  plaintiff,  and  rejected  evidence 
tending  to  show  a  purchase  of  the  property  by  JMcGrath  from 
the  husband.     He  also  submitted  the  evidence  to  the  jury,  to 
find  whether  there  had  been  such  flagrant  wrong  and  deception 
on  part  of  defendant  as  to  warrant  punitive  damages.   The  jury 
found  for  plaintiff  $1,000  damages,  and  we  have  this  appeal  by 
defendant,  who  asigns  nine  errors.     The  first  two  allege  that  the 
court  erred  in  not  instructing  the  jury  that  the  measure  of  dam- 
ages was  the  actual  value  of  the  property  at  the  time  the  writ 
was  issued.     While  appellant  concedes  that   punitive  damages 
may  be  allowed  in  replevin,  yet  it  is  urged  that  it  must  be  a  rare 
case  of  misconduct  where  the  jury  will  be  allowed  to  exceed  in 
their  verdict  the  value  of  the  property.     That  punitive  damages 
in  replevin  may  be  allowed  in  all  cases  where  there  have  been 
peculiar  circumstancs  of  outrage,  oppression,  and  wrong  in  the 
taking  or  detention  was  settled  by  this  court  in  McDonald  v. 
Scaife,  11  Pa.  St.  381.    The  case  was  ably  tried  by  Judge  Lowrie 
in  common  pleas,  and  on  appeal  to  this  court  was  fully  argued 
by  able  counsel  on  both  sides ;  nearly  all  the  authorities  bearing 
on  the  question  being  cited.     This  court  (Rogers.  J.,  rendering 
the  opinion),  after  a  full  review  of  the  authorities  and  discussion 
of  the  subject,  at  the  close  of  the  opinion  announces  this  con- 
clusion:  "On  a  review  of  the  authorities,  we  have  come  to  the 
conclusion  that  it  is  settled,  on  reason  and  authority,  that  al- 
though the  ordinary  rule  is  to  give  damages  for  the  value  of  the 
goods  taken,   with   interest,   yet  the  jury  may,  under  peculiar 
circumstances,  go  beyond  it,  by  giving  exemplary   damages,   as 
in  case  of  an  action  of  trespass."    What  were  the  circumstances 
here?     This  woman  purchased  this  property  from  a  thriftless 
husband,  who  immediately  deserted  her.    She  undertakes  to  earn 


490  DAMAGES   IN   ACTIONS   FOR   WRONGS. 

a  living  by  conducting  with  it  a  stable  for  hire.    Almost  imme- 
diately she  notities  defendant  of  her  purchase,  and  exhibits  to 
him  the  bill  of  sale.    During  some  time  she  interchanges  business 
in  emergencies  with  him,  for  he  also  carries  on  a  livery  stable. 
He  Imew  this  property  was  absolutely  hers.     In  a  few  months, 
unknown  to  the  wife,  the  worthless  husband  returns,  and  in  the 
nighttime  secretly  takes  his  wife's  property  from  her  stable  and 
sells  it  to  defendant,  who  conceals  it.    When  the  wife  makes  in- 
quiry of  him,  he  falsely  alleges  ignorance,  and  pretends  to  aid 
her  in  finding  it.     Then  she  discovers  it  in  his  possession  and 
replevies  it,  and  the  cause  is  for  trial.    He  admits,  of  record,  the 
property  is  hers,  and  that  he  is  wrongfully  in  possession,  but 
seeks  to  retain  it  by  beating  the  verdict  down  to  the  actual  value 
at  the  issue  of  the  writ,  after  he  has  had  possession  nearly  four 
years ;  that  is,  after  knowingly  wronging  her  out  of  her  property 
he  wrongfully  withholds  it  from  her  for  years,  and  then  seeks  to 
turn  the  transaction  into  a  forced  sale  of  the  property  at  its 
actual  value  w^hen  taken.    Plaintiff's  evidence  tended  to  establish 
these  facts,  and  the  jury  believed  it.    These  are  peculiar  circum- 
stances of  wrong  and  oppression.     They  show  collusion  by  de- 
fendant with  a  dishonest  husband  to   deprive   a  wife  of  her 
property.    Such  circumstances  are  peculiar,  because  it  must  be  a 
rare  case,  taking  the  worst  view  of  human  nature,  that  a  man 
will  be  guilty  of  such  conduct.    We  think  the  court,  under  the 
evidence  and  the  law,  committed  no  error  in  instructing  the  jury 
that,  if  they  found  the  facts  as  plaintiff  alleged,  they  might  find 
punitive  damages. 


PABST  BREWING  CO.  v.  RAPID  SAFETY  FILTER  CO. 

New  York,  1907.     107  N.  Y.  Supp.  163. 

Erlanger,  J.  This  action  was  brought  about  May  20,  1904,  to 
recover  the  possession  of  an  automobile  delivery  wagon,  or  for 
the  sum  of  $1,000  in  case  possession  thereof  could  not  be  given  to 
the  plaintiff,  and  for  the  sum  of  $1,000  damages;  the  plaintiff 
alleging  that  the  defendant  the  Rapid  Safety  Filter  Company 
wrongfully  gave  possession  of  the  said  automobile  to  its  code- 
fendant,  the  Mobile  Storage  &  Repair  Company,  for  the  purpose 
of  being  repaired.  Plaintiff  also  alleged  that  the  wagon  was  of 
the  value  of  $1,000,  but  by  reason  of  the  wrongful  detention  by 


REPLEVIN.  491 

tiie  defendcint  it  depreciated  in  value  to  the  extent  of  $1,000. 
The  answer  denied  the  material  allegations  of  the  complaint. 
After  the  commencement  of  the  action  plaintiff  replevied  the 
wagon,  which  remained  in  its  possession  down  to  the  time  of  the 
trial.  The  case  was  tried  on  the  1st  of  April,  1907,  and  the  jury 
found  a  verdict  in  favor  of  the  defendant  the  Rapid  Safety  Filter 
Company,  awarding  to  it  possession  of  the  chattel,  and  assessed 
its  value  at  $1,000.  The  judgment  entered  adjudged  that  the 
said  defendant  recover  from  the  plaintiff'  the  possession  of  the 
chattel  described  in  the  complaint,  and  that  in  case  possession  of 
the  said  property  is  not  delivered  to  the  said  defendant  it  recover 
from  the  plaintiff  the  sum  of  $1,000,  the  value  of  the  said  chattel 
as  found  by  the  jury.  On  the  entry  of  the  judgment  plaintiff 
paid  the  costs  and  served  upon  the  defendant  the  Rapid  Safety 
Filter  Company  a  notice  to  the  effect : 

"Please  let  me  know  where  you  desire  this  chattel  delivered. 
In  the  event  of  your  failure  to  advise  us,  *  *  *  we  will  store 
the  same  at  your  expense  and  risk,  and  subject  to  your  order." 

No  execution  having  been  issued,  plaintiff  placed  the  wagon  in 
a  storage  warehouse  subject  to  the  order  of  the  said  defendant, 
and,  as  it  claims,  delivered  the  storage  receipt  to  defendant's 
attorney.  The  defendant  refusing  to  give  a  certificate  of  the 
satisfaction  of  the  judgment,  a  motion  was  made  to  compel  its 
execution,  in  order  that  the  judgment  might  be  satisfied  of  record. 
In  opposition  to  the  motion  the  filter  company  contended  that  on 
May  7,  1907,  it  inspected  the  wagon  and  found  that  there  were 
missing  one  lamp,  one  complete  set  of  batteries,  four  battery 
trays,  two  lamp  brackets,  one  gong,  one  brake  shoe,  one  electric 
controller,  one  controller  lever,  one  starting  switch,  and  con- 
siderable portions  of  the  wiring  which  were  present  when  the 
machine  was  replevied,  and  that  the  paint  and  varnish  were 
scratched,  marred,  and  defaced,  and  the  vehicle  in  other  re- 
spects injured,  so  that  its  value  was  not  greater  than  $100.  The 
court  below  granted  the  motion,  and  from  that  order  this  appeal 
was  taken. 

"Whatever  conflict  there  may  be  in  the  affidavits  concerning  the 
alleged  depreciation  in  value  of  the  chattel  in  suit  intermediate 
its  replevin  by  the  plaintiff  and  the  trial,  it  is  clear  that  the 
chattel  was  in  the  same  condition  at  the  time  of  its  tender  to  the 
defendant  the  Rapid  Safety  Filter  Company  pursuant  to  the  com- 
mands nf  the  judgment  as  it  was  at  the  time  of  the  trial.     In 


492  DAMAGES    IN    ACTIONS    FOii    WRONGS. 

an  action  of  replevin  the  verdiet  must  fix  tlie  Jamages,  if  any, 
of  the  prevailing  party,  and,  where  it  awards  to  the  prevailing 
party  a  chattel  which  has  been  replevied  and  afterwards  de- 
livered by  the  sheriff  to  the  unsuccessful  party,  the  verdict  must 
also  (except  in  cases  not  material  to  this  question)  fix  the  value 
of  the  chattel  at  the  time  of  the  trial.  Section  1726,  Code  Civ. 
Proc.  The  jury  having  fixed  the  value  of  the  chattel  at  $1,000, 
it  is  conclusively  presumed  that  such  was  its  value  at  the  time 
of  the  trial.  Allen  v.  Fox,  51  N.  Y.  562,  at  page  564.  We  are 
therefore  concluded  by  the  judgment  as  to  the  value  of  the  chat- 
tel at  that  time. 

Under  the  judgment  the  plaintiff  had  the  alternative  of  either 
paying  such  value  or  surrendering  the  chattel.  When  the  un- 
successful party  in  an  action  of  replevin  surrenders  the  chattel 
described  in  the  judgment,  he  fully  complies  therewith.  If  there 
has  been  a  depreciation  in  value  while  the  chattel  remained  in 
the  possession  or  under  the  control  of  the  unsuccessful  party,  the 
prevailing  party  may  recover  damages  for  such  injury  or  depre- 
ciation. Section  1722,  Code  Civ.  Proc.  If  the  property  has  de- 
preciated "intermediate  the  wrongful  taking  and  the  trial,  still 
the  prevailing  party  is  obliged  to  take  it,  if  he  can  obtain  it, 
and  he  is  indemnified  for  the  depreciation  by  the  damages  assessed 
to  him."  Allen  v.  Fox,  51  N.  Y.  565.  Damages  for  detention 
includes  loss  arising  from  depreciation  in  value  during  the  period 
of  its  detention.  Brewster  v.  Silliman,  38  N.  Y.  423.  Damages 
to  the  chattel  while  in  the  possession  of  the  officer  acting  under 
the  replevin  writ  must  be  recovered  in  the  action  of  replevin, 
and  no  action  can  be  brought  therefor  subsequently,  as  the  matter 
has  become  res  adjudicata.  Ritchie  v.  Talcott,  10  Misc.  Rep. 
412-414. 

The  case  of  Kingsley  v.  Sauer,  17  Misc.  Rep.  544,  cited  by  the 
appellant  does  not  apply.  In  that  case  plaintiff  recovered  judg- 
ment for  7  tons  and  180  cubic  feet  of  hay,  and  the  defendant  used 
a  portion  of  the  hay  and  simply  tendered  the  balance  which  the 
plaintiff  refused  to  accept.  If  this  action  had  been  brought  for 
the  recovery  of  two  automobile  wagons,  and  the  defendant  had 
tendered  one  only,  that  case  would  have  been  more  in  point. 
It  is  not  claimed  by  the  appellant  in  its  opposing  affidavits  that 
at  the  time  the  action  was  brought  and  the  chattel  replevied  it 
exceeded  in  value  the  sum  of  $1,000.  The  jury  having  found 
that  the  value  of  the  chattel  at  the  time  of  the  trial  was  $1,000, 


NUISANCE.  493 

the  verdict  carries  with  it  the  finding  that  there  was  no  depre- 
ciation in  value  intermediate  the  replevin  of  the  chattel  and  the 
trial,  and,  the  chattel  being  in  the  same  condition  at  the  time  it 
was  tendered  to  the  prevailing  party  as  at  the  time  of  trial, 
plaintiff  complied  with  the  directions  of  the  judgment,  and  was 
entitled  to  the  order  which  was  made. 
The  order  should  be  affirmed. 

In  an  action  of  replevin,  where  defendant  was  innocent  and  not  a 
willful  trespasser,  and  by  his  act  has  added  largely  to  the  value  of  the 
chattel  taken,  the  unintentional  trespasser  is  protected  and  the  right 
of  the  owner  to  recover  is  limited.  The  expense  of  converting  the 
thing  to  its  new  form  is  deducted.  Eaton  v.  Langley,  65  Ark.  448. 
See  also  Peters  Box  &  Lumber  Co.  v.  Lesh,  119  Ind.  98,  in  a  case 
involving  logs  and  lumber.    See,  also,  Gregory  v.  Morris,  96  U.  S.  619. 


5.     Nuisance. 


SCHLITZ  BREWING  CO.  v.  COMPTON. 

Illinois,  1892.     142  111.  511. 

Appeal  from  the  Appellate  Court  for  the  Third  District. 

This  is  an  action  on  the  case,  by  the  appellee  against  the  ap- 
pellant company.  In  the  trial  court,  the  verdict  and  judgment 
were  in  favor  of  the  plaintiff,  which  judgment  has  been  affirmed 
by  the  Appellate  Court.  The  declaration  consists  of  two  counts. 
The  first  count  alleges,  that  plaintiff  was  possessed  of  certain 
premises  in  Springfield,  in  which  she  and  her  family  resided, 
and  that  the  defendant  to  wit:  on  April  20,  1885,  wrongfully 
erected  a  certain  building  near  said  premises  in  so  careless,  negli- 
gent and  improper  a  manner,  that,  on  said  day  and  afterwards, 
"and  before  the  commencement  of  this  suit,"  large  quantities  of 
rain-water  flowed  upon,  against  and  into  said  premises  and  the 
walls,  roofs,  ceilings,  beams,  papering,  floors,  stairs,  doors,  cellar, 
basement  and  other  parts  thereof,  and  weakened,  injured  and 
damaged  the  same,  by  reason  whereof  said  messuage  and  premises 
became  and  are  damp  and  less  fit  for  habitation.  The  second 
count  alleges  that  plaintiff  was  the  possessor,  occupier  and  owner 
of  said  messuage  and  premises,  in  which  she  and  her  family 
dwelt,  and  the  defendant,  to  wit :  on  said  day,  caused  quantities 
of  water  to  run  into,  against  and  upon  the  same,  and  the  walls, 


494  DAMAGES    IN    ACTIONS   FOR    WRONGS, 

root's,  rioors,  cellars,  etc.,  thereof,  and  thereby  greatly  weakened, 
impaired,  wetted  and  damaged  the  same,  by  reason  whereof  said 
premises  became  and  were  and  are  damp,  incommodious  and  less 
fit  for  habitation.    The  plea  was  not  guilty. 

The  proof  tends  to  show,  that  plaintiff's  building  is  a  two- 
story  brick  building  with  a  cellar  underneath,  the  front  room 
on  the  first  floor  being  used  as  a  butcher's  shop  and  the  rest  of 
the  building  being  used  as  a  dwelling;  that  the  building  was 
erected  several  years  before  that  of  the  defendant ;  that  def end- 
ant 's  building  is  on  the  lot  west  of  plaintiff's  lot,  and  is  about 
60  feet  long,  having  an  office  in  front  and  a  beer-bottling  estab- 
lishment in  the  rear,  and  has  one  roof  which  slants  towards 
plaintiff's  property;  that  there  are  three  windows  on  the  west 
side  of  plaintiff's  house,  besides  the  three  cellar  windows;  that 
her  wall  is  a  little  over  two  feet  from  the  west  line  of  her  lot ; 
that  when  it  rains  the  water  flows  against  her  west  wall  and 
some  of  it  into  her  windows  and  cellar  from  the  roof  of  de- 
fendant's building;  that  the  eave-trough  is  so  far  below  the  eave 
that  the  water  runs  over  it  into  the  windows,  etc. 

Mr.  Justice  IMagruder  delivered  the  opinion  of  the  court. 
Proof  was  introduced  of  damage  done  to  plaintiff's  property 
after  the  commencement  of  the  suit  by  reason  of  rain  storms  then 
occurring.  The  defendant  asked,  and  the  court  refused  to  give, 
the  following  instruction:  "The  court  instructs  the  jury  that 
the  suit  now  being  tried  was  commenced  in  the  month  of  April, 
1890,  and  that  they  are  not  to  take  into  consideration  the  ques- 
tion as  to  whether  or  not  any  damage  has  accrued  to  plaintiff's 
property  since  the  commencement  of  this  suit." 

The  question  presented  is,  whether  plaintiff  was  entitled  to 
recover  only  such  damages  as  accrued  before  and  up  to  the  be- 
ginning of  her  suit,  leaving  subsequent  damages  to  be  sued  for 
in  subsequent  suits,  or  whether  she  was  entitled  to  estimate  and 
recover  in  one  action  all  damages  resulting  both  before  and  after 
the  commencement  of  the  suit. 

The  rule  originally  obtaining  at  common  law  was,  that  in 
personal  actions  damages  could  be  recovered  only  up  to  the 
time  of  the  commencement  of  the  action.  3  Com.  Dig.  tit.  Dam- 
ages, D.  The  rule,  subsequently  prevailing  in  such  actions,  is 
that  damages  accruing  after  the  commencement  of  the  suit  may 
be  recovered,  if  they  are  the  natural  and  necessary  result  of  the 
act  complained  of,  and  where  they  do  not  themselves  constitute 


NUISANCE.  495 

a  new  cause  of  action.  Wood's  Mayne  on  Das.  §  103 ;  Birchard  v. 
Booth,  4  Wis.  67 ;  Slater  v.  Rink,  18  111.  527 ;  Fetter  v.  Beale,  1 
Salk.  11 ;  Howell  v.  Goodrich,  69  111.  556.  In  actions  of  trespass 
to  the  realty,  it  is  said  that  damages  may  be  recovered  up  to  the 
time  of  the  verdict  (Com.  Dig.  363,  tit.  Damages,  D.)  ;  and  the 
reason  why,  in  such  cases,  all  the  damages  may  be  recovered  in 
a  single  action,  is  that  the  trespass  is  the  cause  of  action,  and 
the  injury  resulting  is  merely  the  measure  of  damages.  5  Am.  & 
Eng.  Enc.  Law,  p.  16,  and  cases  cited  in  note  2.  But  in  the 
ease  of  nuisances  or  repeated  trespasses,  recovery  can  ordinarily 
be  had  only  up  to  the  commencement  of  the  suit,  because  every 
continuance  or  repetition  of  the  nuisance  gives  rise  to  a  new 
cause  of  action,  and  the  plaintiff  may  bring  successive  actions  as 
long  as  the  nuisance  lasts.  McConnel  v.  McKibbe,  29  111.  483, 
and  33  id.  175 ;  The  C,  R.  I.  &  P.  R.  R.  Co.  v.  Moffitt,  75  id.  524; 
C,  B.  &  Q.  R.  R.  Co.  V.  Schaffer,  124  id.  112.  The  cause  of  action, 
in  case  of  an  ordinary  nuisance,  is  not  so  much  the  act  of  the  de- 
fendant, as  the  injurious  consequences  resulting  from  his  act; 
and  hence  the  cause  of  action  does  not  arise  until  such  conse- 
quences occur,  nor  can  the  damages  be  estimated  beyond  the  date 
of  bringing  the  first  suit.  5  Am.  &  Eng.  Enc.  Law,  p.  17,  and 
cases  in  notes.  It  has  been  held,  however,  that,  where  permanent 
structures  are  erected,  resulting  in  injury  to  adjacent  realty,  all 
damages  may  be  recovered  in  a  single  suit.  Idem  p.  20  and 
cases  in  note.  But  there  is  much  confusion  among  the  author- 
ities, which  attempt  to  distinguish  between  cases  where  successive 
actions  lie,  and  those  in  which  only  one  action  may  be  maintained. 

This  confusion  seems  to  arise  from  the  different  views  enter- 
tained in  regard  to  the  circumstances,  under  which  the  injury 
suffered  by  the  plaintiff  from  the  act  of  the  defendant  shall  be 
regarded  as  a  permanent  injury.  "The  chief  difficulty  in  this 
subject  concerns  acts  which  result  in  what  effects  a  permanent 
change  in  the  plaintiff's  land,  and  is  at  the  same  time  a  nuisance 
or  trespass."  1  Sedgwick  on  Das.  (8th  ed.)  sec.  94.  Some  cases 
hold  it  to  be  unreasonable  to  assume,  that  a  nuisance  or  illegal 
act  will  continue  forever,  and  therefore  refuse  to  give  entire 
damages  as  for  a  permanent  injury,  but  allow  such  damages  for 
the  continuation  of  the  wrong  as  accrued  up  to  the  date  of  the 
bringing  of  the  suit.  Other  cases  take  the  ground,  that  the  entire 
controversy  should  be  settled  in  a  single  suit,  and  that  damages 
should  be  allowed  for  the  whole  injury  past  and  prospective,  if 


496  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

such  injury  be  proven  with  reasonable  certainty  to  be  permanent 
in  its  character.  Id.  §  94.  We  think  upon  the  whole  that  the 
more  correct  view  is  presented  in  the  former  class  of  cases. 
1  Sutherland  on  Das.  199-202;  3  id.  369-399;  1  Sedgwick  on 
Das.  (8th  ed.)  §§  91-94;  Uline  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  101 
N.  Y.  98 ;  Duryea  v.  Mayor,  26  Hun.  120 ;  Blunt  v.  McCormick, 
3  Denio,  283 ;  Cooke  v.  England.  92  Amer.  Dec.  630,  notes ;  Reed 
V.  State,  108  N.  Y.  407 ;  Hargreaves  v.  Kimberly,  26  W.  Va.  787 ; 
Ottenot  V.  N.  Y.  L.  &  W.  R'y  Co.,  119  N.  Y.  603;  Cobb  v.  Smith, 
38  Wis.  21 ;  Delaware  &  R.  Canal  Co.  v.  Wright,  21  N.  J.  L. 
469  ;  Wells  V.  Northampton  Co.,  151  Mass.  46  ;  Barrick  v.  Schififer- 
decker,  123  N.  Y.  52 ;  Silsby  Manuf 'g  Co.  v.  State,  104  N.  Y.  562 ; 
Aldworth  v.  Lynn,  153  Mass.  53 ;  Towti  of  Troy  v.  Cheshire  R.  R. 
Co.,  23  N.  H.  83 ;  Cooper  v.  Randall,  59  111.  317 ;  C.  &  N.  W.  Ry. 
Co.  V.  Hoag,  90  111.  339.  We  do  not  wish  to  be  understood,  how- 
ever, as  holding  that  the  rule  laid  down  in  the  second  class 
of  cases  is  not  applicable  under  some  circumstances,  as  in  the 
case  of  permanent  injury  caused  by  lawful  public  structures, 
properly  constructed  and  permanent  in  their  character.  In 
Uline  V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  supra,  a  railroad  company 
raised  the  grade  of  the  street  in  front  of  plaintiff's  lots,  so  as  to 
pour  the  water  therefrom  down  over  the  sidewalk  into  the  base- 
ment of  her  houses,  flooding  the  same  with  water  and  rendering 
them  damp,  unhealthy,  etc.,  and  injuring  the  rental  value,  etc. ; 
in  discussing  the  question  of  the  damages,  to  which  the  plaintiff 
was  entitled,  the  court  say :  "  The  question  however  still  remains 
what  damages?  All  her  damages  upon  the  assumption,  that  the 
nuisance  was  to  be  permanent,  or  only  such  damages  as  she  sus- 
tained up  to  the  commencement  of  the  action  ?  *  *  *  There 
has  never  been  in  this  State  before  this  ease  the  least  doubt  ex- 
pressed in  any  judicial  decision  *  *  *  that  the  plaintiff  in 
such  a  case  is  entitled  to  recover  only  up  to  the  commencement 
of  the  action.  That  such  is  the  rule  is  as  well  settled  here  as  any 
rule  of  law  can  be  by  repeated  and  uniform  decisions  of  all  the 
courts;  and  it  is  the  prevailing  doctrine  elsewhere."  Then  fol- 
lows an  exhaustive  review  of  the  authorities,  which  sustain  the 
conclusion  of  the  court  as  above  announced. 

In  Duryea  v.  Mayor,  supra,  the  action  was  brought  to  recover 
damages  occasioned  by  the  wrongful  acts  of  one,  who  had  dis- 
charged water  and  sewage  upon  the  land  of  another ;  and  it  was 
held,  that  no  recovery  could  be  had  for  damages  occasioned  by 


NUISANCE.  497 

the  discharge  of  the  water  and  sewage  upon  the  land  after  the 
commencement  of  the  action. 

In  Blunt  V.  McCormick,  supra,  the  action  was  brought  by  a 
tenant  to  recover  damages  against  his  landlord  because  of  the 
latter 's  erection  of  buildings  adjoining  the  demised  premises, 
which  shut  out  the  light  from  the  tenant's  windows  and  doors; 
and  it  was  held  that  damages  could  only  be  recovered  for  the 
time  which  had  elapsed  when  the  suit  was  commenced,  and  not 
for  the  whole  term. 

In  Hargreaves  v.  Kimberly,  supra,  the  action  was  case  to  re- 
cover damages  for  causing  surface  water  to  flow  on  plaintiff's 
lot,  and  for  injury  to  his  trees  by  the  use  of  coke  ovens  near 
said  lot,  and  for  injury  thereby  to  his  health  and  comfort;  and 
it  was  held  to  be  error  to  permit  a  witness  to  answer  the  fol- 
lowing question:  "What  will  be  the  future  damage  to  the 
property  from  the  acts  of  the  defendant?"  the  court  saying: 
"In  all  those  cases  where  the  cause  of  the  injury  is  in  its  nature 
permanent  and  a  recovery  for  such  injury  would  confer  a 
license  on  the  defendant  to  continue  the  cause,  the  entire  damage 
may  be  recovered  in  a  single  action ;  but,  where  the  cause  of  the 
injury  is  in  the  nature  of  a  nuisance  and  not  permanent  in  its 
character,  but  of  such  a  character  that  it  may  be  supposed  that 
the  defendant  would  remove  it  rather  than  suffer  at  once  the 
entire  damage,  which  it  may  inflict  if  permanent,  then  the  entire 
damage  cannot  be  recovered  in  a  single  action ;  but  actions  may 
be  maintained  from  time  to  time  as  long  as  the  cause  of  the  in- 
jury continues." 

In  Wells  V.  N.  H.  &  N.  Co.,  supra,  where  a  railroad  company 
maintained  a  culvert  under  its  embankment,  which  injured  land 
by  discharging  water  on  it,  it  was  held  that  the  case  fell  within 
the  ordinary  rule  applicable  to  continuing  nuisances  and  con- 
tinuing trespasses ;  reference  was  made  to  Uline  v.  Railroad  Co., 
supra,  and  the  following  language  was  used  by  the  Court:  "If 
the  defendant's  act  was  wrongful  at  the  outset,  as  the  jury  have 
found,  we  see  no  way  in  which  the  continuance  of  its  structure 
in  its  wrongful  form  could  become  rightful  as  against  the 
plaintiff,  unless  by  release,  or  grant,  by  prescription,  or  by  the 
payment  of  damages.  If  originally  wrongful,  it  has  not  become 
rightful  merely  by  being  built  in  an  enduring  manner." 

In  Aldworth  v.  Lynn,  supra,  where  the  action  was  for  dam- 
ages sustained  by  a  landowner  through  the  improper  erection 


498  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

and  maintenance  of  a  dam  and  reservoir  by  the  city  of  Lynn  on 
adjoining  land,  the  Supreme  Court  of  Massachusetts  say:  "The 
plaintiff  excepted  to  the  ruling,  that  she  was  entitled  to  recover 
damages  only  to  the  date  of  her  writ,  and  contended  that  the 
dam  and  pond  were  permanent,  and  that  she  was  entitled  to 
damages  for  a  permanent  injury  to  her  property.  An  erection 
unlawfully  maintained  on  one's  own  land,  to  the  detriment  of 
the  land  of  a  neighbor,  is  a  continuing  nuisance,  for  the  main- 
tenance of  which  an  action  may  be  brought  at  any  time,  and 
damages  recovered  up  to  the  time  of  bringing  the  suit.  *  *  * 
That  it  is  of  a  permanent  character,  or  that  it  has  been  con- 
tinued for  any  length  of  time  less  than  what  is  necessary  to 
acquire  a  prescriptive  right,  does  not  make  it  lawful,  nor  de- 
prive the  adjacent  landowner  of  his  right  to  recover  damages. 
Nor  can  the  adjacent  landowner  in  such  a  case,  who  sues  for 
damage  to  his  property,  compel  the  defendant  to  pay  damages 
for  the  future.  The  defendant  may  prefer  to  change  his  use  of 
his  property  so  far  as  to  make  his  conduct  lawful.  In  the  present 
case,  we  cannot  say  that  the  defendant  may  not  repair  or  recon- 
struct its  dam  and  reservoir  in  such  a  way,  as  to  prevent  percola- 
tion, with  much  less  expenditure  than  would  be  required  to  pay 
damages  for  a  permanent  injury  to  the  plaintiff's  land." 

In  the  case  at  bar,  the  defendant  did  not  erect  the  house  upon 
plaintiff's  land,  but  upon  his  own  land.  It  does  not  appear,  that 
such  change  might  not  be  made  in  the  roof,  or  in  the  manner  of 
discharging  the  water  from  the  roof,  as  to  avoid  the  injury  com- 
plained of.  The  first  count  of  the  declaration,  by  its  express 
terms,  limits  the  recovery  for  damages,  arising  from  the  negligent 
and  improper  construction  of  defendant's  building,  to  such  in- 
juries as  were  inflicted  "before  the  commencement  of  the  suit." 
The  second  count  was  framed  in  such  a  way,  as  to  authorize  a 
recovery  of  damages  for  the  flow  of  water  upon  plaintiff's 
premises  from  some  other  cause  than  the  wrongful  construction 
of  defendant's  building;  and  accordingly  plaintiff's  evidence 
tends  to  show,  that  the  eave-trough,  designed  to  carry  off  the 
water  from  the  roof,  was  so  placed  as  to  fail  of  the  purpose  for 
which  it  was  intended.  It  cannot  be  said,  that  the  eave-trough 
was  a  structure  of  such  a  permanent  character  that  it  might  not 
be  changed,  nor  can  it  be  said  that  the  defendant  would  not  re- 
move the  cause  of  the  injury  rather  than  submit  to  a  recovery  of 
entire  damages  for  a  permanent  injury,  or  suffer  repeated  re- 


NUISANCE,  499 

coveries  during  the  continuance  of  the  injury.  The  facts  in  the 
record  tend  to  show  a  continuing  nuisance,  as  the  same  is  defined 
in  Aldworth  v.  Lynn,  supra.  There  is  a  legal  obligation  to  re- 
move a  nuisance ;  and  ' '  the  law  will  not  presume  the  continuance 
of  the  wrong,  nor  allow  a  license  to  continue  a  wrong,  or  a  trans- 
fer of  title,  to  result  from  the  recovery  of  damages  for  prospective 
misconduct."     1  Suth.  on  Das.  199,  and  notes.     *     *     * 

"We  think  the  correct  rule  upon  this  subject  is  stated  as  fol- 
lows :  "  If  a  private  structure  or  other  work  on  land  is  the  cause 
of  a  nuisance  or  other  tort  to  the  plaintiff,  the  law  cannot  re- 
gard it  as  permanent,  no  matter  with  what  intention  it  was 
built;  and  damages  can  therefore  be  recovered  only  to  the  date 
of  the  action."    1  Sedgwick  on  Das.  (8th  ed.)  §  93. 

It  follows  from  the  foregoing  observations,  that  it  was  error' 
to  allow  the  plaintiff'  to  introduce  proof  of  damage  to  her  property 
caused  by  rain-storms  occurring  after  the  commencement  of  her 
suit,  and  that  the  instruction  asked  by  the  defendant  upon  that 
subject,  as  the  same  is  above  set  forth,  should  have  been  given. 

The  judgment  of  the  Appellate  and  Circuit  Courts  are  re- 
versed, and  the  cause  is  remanded  to  the  Circuit  Court. 

Judgment  reversed. 


ACKERMAN  v.  TRUE. 

New  York,  1903.     175  N,  Y.  353. 

Martin,  J.  On  March  15,  1898,  the  defendant  conveyed  to 
the  plaintiff  a  plot  of  ground  on  the  northeast  corner  of  River- 
side drive  and  Eighty-second  street  in  the  city  of  New  York, 
which  extends  along  the  easterly  side  of  Riverside  drive  about 
sixty  feet  and  along  the  southerly  side  of  Eighty-second  street 
twelve  feet.  At  the  time  of  this  conveyance  the  defendant  also 
owTied  the  property  fronting  on  Riverside  drive  adjoining  the 
lot  conveyed  to  the  plaintiff  on  the  northerly  side  and  extending 
to  Eighty-third  street.  The  plaintiff  owned  a  lot  adjoining  that 
conveyed  to  her  by  the  defendant  on  which  there  was  a  house 
in  which  she  resided.  Subsequent  to  the  conveyance  to  the 
plaintiff  the  defendant  constructed  a  row  of  houses  on  the  plot 
owned  by  him  northerly  of  the  plaintiff's  lot.  The  house  which 
the  defendant  built  upon  the  lot  adjoining  the  plaintiff's  was 
extended  three  feet  and  six  inches  beyond  the  easterly  line  of 


500  DAMAGES  IN   ACTK)NS  I'OH  WKONGS. 

the  street,  and  had  in  addition  wliat  is  known  as  a  swell  front 
or  hay  window  also  extending  into  Riverside  drive.  The  plaintiff 
claims  that  so  much  of  the  house  built  by  the  defendant  adjoining 
her  property  as  extends  beyond  the  line  of  Riverside  drive  and 
into  that  street  is  an  unlawful  invasion  or  trespass  upon  her 
rights,  and  is  a  public  nuisance  from  which  she  has  suffered 
special  damages  to  a  large  amount  by  tlie  diminution  of  the  value 
of  her  property.  This  action  was  to  compel  1he  defendant  to  re- 
move that  portion  of  the  building  and  to  pay  the  plaintiff  dam- 
ages for  the  injury  sustained  by  her  by  reason  of  such  encroach- 
ment and  invasion  of  her  rights. 

In  the  complaint,  after  describing  the  situation,  it  was  alleged 
that  the  defendant  had  commenced  and  was  erecting  in  River- 
side drive,  which  was  a  public  highway  of  the  city  of  New  York, 
and  adjoining  her  property,  a  solid  brick  and  stone  wall,  four 
stories  in  height,  and  extending  into  that  street  about  four  feet 
and  about  thirty-two  feet  in  width ;  and  that  this  unlawful  struc- 
ture injures  her  property,  obstructs  her  view,  interferes  with 
her  easements  of  light,  air  and  access  appurtenant  thereto,  and 
otherwise  injures  her  property  to  the  amount  of  ten  thousand 
dollars.  It  is  further  alleged  that  the  defendant's  building  is 
a  violation  of  the  provisions  of  the  charter  of  the  city  of  New 
York;  that  it  constitutes  a  nuisance,  and  is  an  infringement 
upon  and  violation  of  the  plaintiff's  rights  which  will  cause  her 
irreparable  damage  unless  the  same  is  removed,  for  which  she  has 
no  adequate  remedy  at  law.  In  her  demand  for  relief  she  asks 
for  a  decree  adjudging  the  defendant's  building  to  be  an  un- 
lawful obstruction  of  the  public  highway  and  an  unlawful  inter- 
ference with  her  easements  of  light,  air  and  access ;  that  the  same 
be  forthwith  taken  down  and  removed,  and  that  the  defendant 
be  perpetually  enjoined  from  reconstructing  the  same.  An  in- 
junction pendente  lite  was  also  asked  for  and  a  judgment  for  ten 
thousand  dollars  damages  was  demanded.     *     *     * 

The  defendant  insists  that  inasmuch  as  the  trial  court  found 
that  the  plaintiff  has  sustained  no  special  damages  by  reason  of 
the  alleged  encroachment,  the  complaint  was  properly  dismissed 
upon  the  merits.  The  difficulty  with  this  finding  is  that  there 
was  no  evidence  to  sustain  it,  and  as  the  affirmance  by  the  Ap- 
pellate Division  was  not  unanimous,  that  question  must  be  con- 
sidered upon  this  appeal.  The  proof  showed  quite  conclusively 
that  the  erection  and  maintenance  of  this  encroachment  upon  the 


NUISANCE.  501 

street  affected  the  value  of  the  plaintiff's  property,  and  that  it 
was  worth  about  fifteen  thousand  dollars  less  than  it  would  be 
if  the  defendant's  wall  did  not  project  into  the  street.  The  only 
theory  upon  which  the  court  found,  or  which  is  insisted  upon 
by  the  defendant  as  tending  to  show  that  the  plaintiff  sustained 
no  damages,  is  the  fact  that  her  property  is  now  worth  more 
than  it  was  before  the  wall  was  erected.  It  is  not  claimed  that 
the  extension  of  the  wall  into  the  street  has  improved  the  value 
of  the  plaintiff's  property,  but  the  claim  is  that  inasmuch  as  she 
can  now  sell  her  property  for  an  amount  exceeding  the  price 
which  she  paid,  she  has  suffered  no  damages.  The  logic  of  this 
contention  is  not  apparent.  If  she  made  a  fortunate  purchase, 
or  if  it  has  become  so  by  the  improvement  of  that  neighborhood, 
she  is  certainly  entitled  to  the  benefit  of  any  advance  in  the  value 
of  the  property  so  purchased.  In  ascertaining  the  damages  she 
has  sustained,  the  true  rule  is  to  prove  the  value  of  the  property 
with  the  defendant's  encroachment,  and  its  value  with  that  en- 
croachment removed  and  the  difference  is  the  measure  of  her 
loss.  That  difference  was  proved  to  be  fifteen  thousand  dollars. 
Under  these  circumstances,  it  is  difficult,  indeed  quite  impossible, 
to  see  how  it  can  be  properly  said  that  the  plaintiff  has  suffered 
no  special  damages.  We  are  of  the  opinion  that  the  trial  court 
was  not  justified,  upon  the  evidence  in  the  record,  in  finding 
that  the  plaintiff  has  sustained  no  special  damages  by  reason  of 
the  encroachment. 

In  the  further  consideration  of  this  case  it  will  be  assumed 
that  the  plaintiff  has  established  the  fact  that  she  has  sustained 
special  damages  by  reason  of  the  defendant's  encroachment  upon 
the  street  amounting  to  about  the  sum  of  fifteen  thousand  dollars, 
and  that  these  damages  are  peculiar  to  the  plaintiff  and  in  addi- 
tion to  those  which  were  suffered  by  the  general  public.  It  is 
well  established  by  the  decisions  of  this  court  that  interferences 
with  public  and  common  rights  create  a  public  nuisance,  and 
when  accompanied  with  special  damage  to  the  owner  of  lands 
give  also  a  right  of  private  action  to  such  owner,  and  that  a 
public  nuisance  as  to  the  person  who  is  specially  injured  thereby 
in  the  enjoyment  or  value  of  his  lands  becomes  also  a  private 
nuisance.  That  this  encroachment  upon  the  street  was  a  public 
nuisance  and  that  as  to  the  plaintiff  it  was  a  private  nuisance, 
we  have  no  doubt.  In  the  language  of  Blackstone,  a  private 
nuisance  is  "anything  done  to  the  hurt  and  annoyance  of  the 


502  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

lands,  tenements  or  hereditaments  of  another,"  which  embraces 
not  a  mere  physical  injury  to  the  realty,  but  an  injury  to  the 
owner  or  possessor  as  respects  his  dealing  with,  possessing  or  en- 
joying it,  and  that  one  erecting  or  maintaining  such  a  nuisance 
is  liable  in  an  action  at  the  suit  of  another  who  has  sustained 
such  special  damages,  and  he  may  be  restrained  in  equity  from 
continuing  the  nuisance,  (Adams  v.  Popham,  76  N.  Y.  410; 
Francis  v.  Schoellkopf,  53  N.  Y.  152 ;  Kavanagh  v.  Barber,  131 
N.  Y.  211,  213;  Wakeman  v.  Wilbur,  147  N.  Y.  657,  663.)  In 
the  case  last  cited  Judge  O  'Brien  said :  * '  The  obstruction  of  the 
public  highway  is  an  act  which  in  law  amounts  to  a  public  nui- 
sance, and  a  person  who  sustains  a  private  and  peculiar  injury 
from  such  an  act  may  maintain  an  action  to  abate  the  nuisance 
and  to  recover  the  special  damages  by  him  sustained"  (citing 
Peor^e  V.  Kerr,  27  N.  Y.  193 ;  Davis  v.  Mayor,  etc.,  of  N.  Y.,  14 
N.  Y.  506 ;  Adams  v.  Popham,  76  N.  Y.  410 ;  Chipman  v.  Palmer, 
77  N.  Y.  51),  and  he  then  adds:  "The  extent  of  the  injury  is  not 
generally  considered  very  important.  It  should  be  substantial, 
of  course,  and  not  merely  nominal,  and  the  fact  that  numerous 
other  persons  have  been  injured  by  the  act  is  no  ground  for  a 
denial  of  the  relief." 

Under  the  principle  of  these  authorities  it  becomes  obvious, 
we  think,  that  the  plaintiff  was  entitled  to  maintain  this  action 
not  only  for  the  purpose  of  abating  the  nuisance,  but  also  to 
recover  any  damages  she  might  have  sustained  by  reason  of  the 
wrongful  acts  of  the  defendant  in  constructing  and  maintaining 
this  encroachment  upon  the  street.     *     *     * 

Judgment  reversed. 


PRITCHARD  V.  EDISON  ELECTRIC  ILLUMINATING  CO. 

New  York,  1904.    179  N.  Y.  364. 

Haight,  J.  This  action  was  brought  to  recover  the  damages 
resulting  from  the  maintenance  of  a  nuisance  by  the  defendant. 
The  plaintiff's  testator,  on  the  19th  day  of  April,  1890,  leased 
from  the  owners  the  property  known  as  "Miller's  Hotel," 
situated  on  West  Twenty-Sixth  street,  New  York,  at  Nos.  37, 
39,  and  41,  for  the  period  of  five  years,  at  an  annual  rental  of 
$15,000,  and  at  the  end  of  that  period  he  renewed  the  lease  for 
another  period  of  five  years  at  a  rental  of  $12,000  per  year.    In 


NUISANCE,  503 

1888  the  defendant  constructed  and  put  in  operation  an  electric 
lighting  plant  and  power  station  situated  upon  the  same  street 
41  feet  west  of  the  hotel.  In  the  complaint  it  is  alleged  that  the 
defendant  had  so  constructed  and  conducted  its  property  and 
operated  its  machinery  as  to  discharge  upon  the  premises  of  the 
plaintiff  great  quantities  of  soot,  cinders,  ashes,  noisome  gases, 
unpleasant  odors,  steam,  and  water  condensing  from  steam,  which 
pervaded  the  premises  of  the  plaintiff,  fouling  and  injuring  the 
same  and  the  furniture  therein,  and  further  made  and  produced 
loud,  disagreeable,  and  incessant  noises,  and  very  great  jar  and 
vibration,  which  was  transmitted  through  the  premises  of  the 
plaintiff,  to  the  injury  of  the  same,  causing  a. great  nuisance, 
and  disturbing  the  rest  and  quiet  of  its  inmates,  and  preventing 
their  sleep,  and  injuriously  affecting  their  health  and  their  quiet 
and  peaceful  enjoyment  and  use  of  their  apartments,  to  the 
plaintiff's  damages,  etc.  Two  actions  were  brought  by  the 
plaintiff 's  testator  covering  different  periods  of  time,  which  have 
been  consolidated  and  tried  together  as  one  action,  resulting  in 
the  verdict  upon  which  the  judgment  appealed  from  was  en- 
tered.    *     *     * 

The  serious  question  in  the  case  pertains  to  the  rule  of  damages 
adopted  by  the  trial  court.  The  jury  was  charged  that :  *  *  If  the 
defendant's  power  station,  as  operated,  was  a  nuisance,  and  les- 
sened the  profits  of  this  hotel,  the  damages  which  the  plaintiff 
may  recover  are  to  be  limited  to  the  actual  loss  of  profits,  such 
as  you  find  from  the  evidence  were  caused  to  be  lost  through 
the  defendant's  acts  in  the  use  and  operation  of  its  power  sta- 
tion." And  again:  "Generally,  upon  the  question  of  the 
plaintiff's  claim  that  profits  were  lost,  you  should  first  take  the 
gross  receipts  of  this  hotel,  j'^ear  by  year,  as  they  appear  to  you 
from  the  evidence  to  have  been,  and  deduct  from  them,  year  by 
year,  the  rent  paid  by  Mr.  Haynes  and  the  running  expenses. 
This  would  give  the  net  profits  of  each  year."  And  finally: 
"You  are  to  notice  that  at  some  time  after  the  establishment  of 
the  station  the  rent  of  the  hotel  was  lessened,  and  so  far  Mr. 
Haynes  had  less  expenses  in  the  running  of  his  hotel.  To  this 
extent,  if  his  gross  receipts  fell  off,  there  would  still  be  no  loss, 
unless  the  reduction  of  gross  receipts  was  greater  than  the  reduc- 
tion of  rents.  The  same  considerations  would  apply  to  any  re- 
duction of  the  running  expenses  of  the  hotel  after  the  year  1888, 
since  your  comparison  of  profits  before  and  after  the  station  was 


504  DAMAGES  IN  ACTIONS  FUK  WRONGS. 

established  must  be  based  upon  ihe  net  proilts  in  each  year; 
that  is,  profits  over  and  above  tlie  actual  rent  and  running  ex- 
penses year  by  year.  You  are  to  make  this  comparison,  gentle- 
men, for  the  purpose  of  finding  whether  there  was  a  loss  during 
the  period  after  the  defendant 's  station  was  in  operation.  If 
there  was  a  loss,  you  are  then  to  consider  how  much  of  it  was 
reasonably  caused  by  the  defendant's  act  in  maintaining  the 
power  station.  And  the  damages  which  you  may  award  in  this 
action  would  be  the  amount  of  loss  which  you  find  to  have  been 
caused  by  the  nuisance  from  November  22d,  1892,  to  November 
1st,  1898." 

The  plaintiff's  evidence  tended  to  show  that  the  premises  had 
been  conducted  for  many  years  as  a  family  hotel,  and  that  but 
few  rooms  were  reserved  for  transients;  that  in  the  renting  of 
rooms  or  apartments  the  board  or  meals  were  included ;  and  that 
the  gross  income  from  the  rental  of  rooms  by  the  year  is  shown 
by  Exhibit  9,  from  which  is  appears  that  in  1883  the  rents  re- 
ceived amounted  to  $50,376.22.  From  this  there  was  a  gradual 
falling  off  each  year,  until  1886,  when  the  amount  received  was 
but  $40,963.56.  From  this  there  was  a  greater  increase  in  rents, 
even  after  the  establishment  of  the  defendant's  plant,  until  1891, 
when  the  amount  received  was  $46,307.75.  During  the  next  year 
there  was  a  falling  off  of  $6,000,  and  of  the  next  year  of  $4,000, 
and  of  a  gradual  decline  in  the  following  years,  until  1896,  when 
the  receipts  had  fallen  to  $32,754.49.  In  1897  there  was  again 
substantial  increase  in  the  income.  The  plaintiff's  expert  witness 
Perry  gave  evidence  tending  to  show  there  was  a  depreciation  in 
the  rental  value  of  the  premises  from  1892  down  to  1900  of  about 
$2,000  per  year.  It  appears  that  at  the  end  of  the  first  lease  in 
1895  the  landlord,  in  settling  with  the  plaintiff,  his  tenant,  de- 
ducted $9,000  from  the  rent  required  by  the  lease ;  that  in  giving 
the  new  lease  for  another  five  years  the  rent  was  reduced  $3,000 
per  year;  and  that  upon  the  termination  of  that  lease  another  re-  ? 
duction  was  given  upon  the  rent  accrued  amounting  to  $10,250. 
The  running  expenses  of  the  hotel  either  before  or  after  de- 
fendant's plant  became  a  nuisance  we  have  not  found  in  the 
appeal  book,  so  that  we  have  no  basis  from  which  we  can  ascer- 
tain the  net  profits  for  any  year,  or  as  to  whether  there  was  any 
loss  of  such  profits  in  any  year.     *     *     * 

We  are  thus  brought  to  the  consideration  oP  the  exceptions 
taken  to  the  defendant's  request  to  charge.    There  are  two  that 


NUISANCE.  505 

bear  upon  the  subject  of  damages  which  require  consideration. 
The  first  is:  "The  measure  of  damages  applicable  to  a  case  of 
this  kind  is  the  actual  diminution  in  rental  value  by  reason  of 
the  defendant 's  acts. ' '  This  request  undoubtedly  states  the  gen- 
eral rule,  and  the  diminution  in  rental  value  is  one  of  the  items 
of  damages  applicable  to  this  case.  But  the  trouble  with  the 
request  is  that  it  is  not  the  only  item  of  damage  applicable.  As 
we  have  seen,  the  complaint  alleges  the  fouling  of  the  premises 
and  the  injuring  of  the  furniture  from  the  great  quantities  of 
soot,  cinders,  etc.,  escaping  from  the  defendant's  premises  and 
pervading  those  of  the  plaintiff.  During  the  trial  there  was  some 
evidence  given  tending  to  show  that  the  window  curtains,  win- 
dows, and  furniture  generally  would  become  soiled,  and  new  up- 
holstering necessary  much  oftener  than  before  the  plant  became 
a  nuisance,  and  that  the  services  of  an  extra  man  became  neces- 
sary to  do  the  cleaning,  whose  services  cost  from  $20  to  $25  a 
month.  So  that,  while  diminution  in  rental  value  becomes  an 
item  of  damages  which  the  jury  might  award,  in  this  case  there 
has  been  alleged,  and  evidence  given  tending  to  prove,  other  in- 
dependent items  of  damages  not  covered  by  the  diminution  in 
the  rental  value  of  the  premises.  As  to  whether  loss  of  profits 
in  a  business  established  upon  the  leasehold  premises  can  be  re- 
coverable in  any  case,  we  are  not  called  upon  to  consider,  nor 
do  we  now  determine  the  question,  for  the  reason  that  it  is  not 
raised  by  any  exception  which  we  have  power  to  review. 

The  other  request  to  charge  is  that  "loss  of  income  from  busi- 
ness is  not  provable  as  an  element  of  damage. ' '  There  may  be  a 
loss  of  income,  and  at  the  same  time  an  equal  lessening  of  the 
expenses  of  the  business,  so  that  the  net  profits  would  remain  the 
same.  This  request,  therefore,  does  not  present  the  question 
as  to  whether  the  loss  in  net  profits  from  a  business  is  provable 
as  an  item  of  damages.  In  this  case  the  rent  of  rooms  or  apart- 
ments in  the  hotel  was  a  part  of  the  business  in  which  the  plaintiff 
was  engaged.  We  think  that  the  evidence  skowing  the  deprecia- 
tion in  the  rent  of  the  rooms  in  the  hotel  from  year  to  year  was 
competent  as  bearing  upon  the  question  as  to  whether  there  was 
a  diminution  in  the  rental  value  of  the  whole  premises,  and  that 
the  request  to  charge  under  the  circumstances  was  properly  re- 
fused. 

For  the  reasons  stated,  the  judgment  should  be  affirmed,  with 
costs. 


506  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

CuLLEN,  C.  J.,  and  Gray,  Bartlett,  Vann,  and  Werner,  JJ., 
concur.    Martin,  J.,  absent. 

Judgment  affirmed. 

An  electric  lighting  company,  tliongh  it  has  (ho  power  of  eminent 
domain,  cannot  erect  a  nnisance  which  impairs  the  legitimate  use  of 
private  property.  If  it  does,  exemplary  damages  can  be  recovered  for 
a  second  offense.     Ganstler  v.  Met.  El.  Co.,  214  Pa.  628. 

One  may  be  compensated  for  destruction  of  ornamental  trees, 
flowers  and  vines.  Articles  of  luxury  will  be  protected  no  less  than 
articles  of  necessity.  The  law  will  protect  a  flower  as  well  as  an  oak. 
The  law  will  not  compel  a  man  to  take  money  rather  than  the  objects 
of  beauty  which  he  places  around  his  dwelling  to  gratify  his  taste. 
Campbell  v.  Seaman,  63  N.  Y,  568. 

Where  a  nnisance  obstructs  a  public  highway  and  the  same  can  be 
removed  at  a  trifling  cost  such  cost  is  the  measure  of  damages.  Mel- 
lick  V.  Penn.  R.  R.  203  Pa.  457. 


6.     Assault  and  Battery. 

FETTER  V.  BEAL. 
King's  Bench,  1698,  1701.    I  Ld.  Raym,  339,  692. 

Special  action  of  trespass  and  battery  for  a  battery  com- 
mitted by  the  defendant  upon  the  plaintiff,  and  breaking  his 
skull.  The  plaintiff  declares  of  the  battery,  &c.,  and  that  he 
brought  an  action  for  it  against  the  defendant,  and  recovered 
£11  and  no  more ;  and  that  after  that  recovery  part  of  his  skull 
by  reason  of  the  said  battery  came  out  of  his  head,  per  quod,  &c. 
The  defendant  pleaded  the  said  recovery  in  bar.  Upon  which 
the  plaintiff  demurred.  And  Shower  for  the  plaintiff  argued, 
that  this  action  differed  from  the  nature  of  the  former,  and 
therefore  would  well  lie,  notwithstanding  the  recovery  in  the 
other;  because  the  recovery  in  the  former  action  was  only  for 
the  bruise  and  battery,  but  here  there  is  a  maihem  by  the  loss 
of  the  skull.  As  if  a  man  brings  an  action  against  another  for 
taking  and  detaining  of  goods  for  two  months,  and  afterwards 
he  brings  another  action  for  taking  and  detaining  for  two  years, 
the  recovery  in  the  former  action  is  not  pleadable  in  bar  of  the 
second.  If  death  ensues  upon  the  battery  of  a  servant,  this  will 
take  away  the  action  per  quod  servitium  amisit.  And  then  if  a 
consequence  will  take  away  an  action,  for  the  same  reason  it 


ASSAULT  AND  BATTERY.  507 

will  give  an  action.  If  a  man  brings  an  action  for  uncovering 
his  house,  by  which  his  goods  were  spoiled,  and  afterwards  by 
reason  of  the  said  uncovering  new  goods  are  spoiled,  he  shall 
have  a  new  action  Quod  Holt  negavit.  And  per  totam  curiam, 
the  jury  in  the  former  action  considered  the  nature  of  the  wound, 
and  gave  damages  for  all  the  damages  that  it  had  done  to  the 
plaintiff ;  and  therefore  a  recovery  in  the  said  action  is  good  here. 
And  it  is  the  plaintiff's  fault,  for  if  he  had  not  been  so  hasty, 
he  might  have  been  satisfied  for  this  loss  of  the  skull  also. 

Judgment  for  the  defendant,  nisi,  <&c. 


BEACH  V.  HANCOCK. 

New  Hampshire,  1853.    27  N.  H.  223. 

In  this  action  of  trespass  for  an  assault,  it  appeared  that  while 
the  plaintiff  and  defendant  were  engaged  in  a  bitter  controversy, 
the  defendant  w^ent  into  his  office,  which  was  near  at  hand,  and 
obtained  a  gun,  which  he  pointed  in  a  threatening  manner  at  the 
plaintiff,  who  was  three  or  four  rods  away.  The  defendant 
snapped  the  gun  which  was  not  loaded  two  or  three  times  at  the 
plaintiff,  the  latter  not  knowing  that  the  gun  was  not  loaded. 

The  court  instructed  the  jury  that  the  defendant  had  com- 
mitted an  assault,  and  that  in  assessing  damages,  it  was  their 
duty  to  consider  the  effect  that  trivial  damages  would  have  in 
encouraging  a  disregard  of  the  laws  and  disturbances  of  the 
peace.  The  defendant  excepted.  The  jury  brought  in  a  verdict 
for  the  plaintiff,  and  the  defendant  moved  for  a  new  trial. 

By  Court,  Gilchrist,  C.  J.  Several  cases  have  been  cited  by 
the  counsel  of  the  defendant,  to  show  that  the  ruling  of  the 
court  was  incorrect.  Among  them  is  the  case  of  Regina  v.  Baker, 
1  Carr  &  Kirw,  254.  In  that  case  the  prisoner  was  indicted 
under  the  statute  of  7  Wm.  IV  and  1  Vic.  ch.  85,  for  attempting 
to  discharge  a  loaded  pistol.  Rolfe,  B.,  told  the  jury  that  they 
must  consider  whether  the  pistol  was  in  such  a  state  of  loading 
that  under  ordinary  circumstances  it  would  have  gone  off.  and 
that  the  statute  under  which  the  prisoner  was  indicted  would 
then  apply.  He  says,  also:  "If  presenting  a  pistol  at  a  person, 
and  pulling  the  trigger  of  it,  be  an  assault  at  all,  certainly  in 
the  ease  where  the  pistol  is  loaded,  it  must  be  taken  to  be  an 


508  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

attempt  to  discharge  the  pistol  with  intent  of  doing  some  bodily 
injury." 

From  the  manner  in  which  this  statement  is  made,  the  opinion 
of  the  court  must  be  inferred  to  be,  that  presenting  an  unloaded 
pistol  is  an  assault.  There  is  nothing  in  the  case  favorable  to 
the  defendant.     The  statute  referred  to  relates  to  loaded  arms. 

The  case  of  Regina  v.  James,  1  Carr  &  Kirw  529,  was  an  in- 
dictment for  attempting  to  discharge  a  loaded  rifle.  It  was 
shown  that  the  priming  was  so  damp  that  it  would  not  go  off. 
TiNDAL,  C.  J.,  said :  "I  am  of  opinion  that  this  was  not  a  loaded 
arm  within  the  statute  of  1  Vic.  ch.  85 ;  and  that  the  prisoner  can 
neither  be  convicted  of  the  felony  nor  of  the  assault.  It  is  only 
an  assault  to  point  a  loaded  pistol  at  any  one,  and  this  rifle  is 
proved  not  to  be  so  loaded  as  to  be  able  to  be  discharged. ' ' 

The  reason  why  the  prisoner  could  not  be  convicted  of  the 
assault  is  given  in  the  case  of  Regina  v.  St.  George,  9  C.  &  P. 
483,  where  it  was  held  that  on  an  indictment  for  a  felony,  which 
includes  an  assault,  the  prisoner  ought  not  to  be  convicted  of  an 
assault  which  is  quite  distinct  from  the  felony  charged,  and  on 
such  an  indictment  the  prisoner  ought  only  to  be  convicted  of  an 
assault  which  is  involved  in  the  felony  itself. 

In  this  case,  Parke,  B.,  said:  "If  a  person  presents  a  pistol 
which  has  the  appearance  of  being  loaded,  and  puts  the  party 
into  fear  and  alarm,  that  is  what  it  is  the  object  of  the  law  to 
prevent." 

So  if  a  person  presents  a  pistol,  purporting  to  be  a  loaded 
pistol,  at  another,  and  so  near  as  to  have  been  dangerous  to  life 
if  the  pistol  had  gone  off,  semble  that  this  is  an  assault,  even 
though  the  pistol  were  in  fact  not  loaded.    Ibid. 

In  the  case  of  Blake  v.  Barnard,  9  C.  &  P.  626,  which  was  tres- 
pass for  an  assault  and  false  imprisonment,  the  declaration 
alleged  that  the  pistol  was  loaded  with  gunpowder,  ball,  and  shot, 
and  it  was  held  that  it  was  incumbent  on  the  plaintiff  to  make 
that  out.  Lord  Abinger  then  says,  "If  the  pistol  was  not  loaded, 
it  would  be  no  assault,"  and  the  prisoner  would  be  entitled  to 
an  acquittal,  which  was  undoubtedly  correct  under  that  declara- 
tion, for  the  variance.    Regina  v.  Oxford,  id.  525. 

One  of  the  most  important  objects  to  be  obtained  by  the 
enactment  of  laws  and  institutions  of  civilized  society  is, 
each  of  us  shall  feel  secure  against  unlawful  assaults.  With- 
out   such    security,    society    loses    most    of    its    value,  peace, 


ASSAUIiT  AND  BATTERY.  509 

and  order;  and  domestic  happiness,  inexpressibly  more  pre- 
cious than  mere  forms  of  government,  cannot  be  enjoyed 
without  the  sense  of  perfect  security.  We  have  a  right  to  live 
in  society  without  being  put  in  fear  of  personal  harm.  But  it 
must  be  a  reasonable  fear  of  which  we  complain.  And  it  surely 
is  not  unreasonable  for  a  person  to  entertain  a  fear  of  personal 
injury  when  a  pistol  is  pointed  at  him  in  a  threatening  manner, 
when,  for  aught  he  knows,  it  may  be  loaded,  and  may  occasion 
his  immediate  death.  The  business  of  the  world  could  not  be 
carried  on  with  comfort  if  such  things  could  be  done  with  im- 
punity. 

We  think  the  defendant  guilty  of  an  assault,  and  we  perceive 
no  reason  for  taking  any  exception  to  the  remarks  of  the  court. 
Finding  trivial  damages  for  breaches  of  the  peace,  damages  in- 
commensurate with  the  injury  sustained,  would  certainly  lead  the 
ill-disposed  to  consider  an  assault  as  a  thing  that  might  be  com- 
mitted with  impunity.  But  at  all  events,  it  was  proper  for  the 
jury  to  consider  whether  such  a  result  would  or  would  not  be 
produced.    Flanders  v.  Colby.  28  N.  II.  34. 

Judgment  on  the  verdict. 


HANNA  V.  SWEENEY. 

Connecticut,  1906.    78  Conn.  492. 

Torrance,  C.  J.  In  the  trial  court  the  evidence  for  the  plain- 
tiff tended  to  prove  that  the  defendant  committed  upon  him  a 
violent,  unprovoked,  and  malicious  assault  and  battery,  whereby 
the  plaintiff  was  greatly  injured  in  mind,  body,  and  estate. 
Upon  that  evidence  the  plaintiff  claimed  to  be  entitled,  if  the 
jury  found  in  his  favor,  not  only  to  full  compensation  for  all  his 
actual  injuries,  but  also  to  damages,  in  excess  of  such  compensa- 
tion, variously  termed  exemplary,  punitive,  or  vindictive;  and 
the  court  correctly  charged  the  jury  in  accordance  with  the  tenor 
of  this  claim.  St.  Peter's  Church  v.  Beach,  26  Conn.  355;  Burr 
V.  Plymouth,  48  Conn.  460 ;  Maisenbacker  v.  Society  Concordia, 
71  Conn.  369 ;  Welch  v.  Durand,  36  Conn.  182. 

The  court,  however,  further  charged  the  jury  with  reference 
to  such  damages  that,  if  they  found  in  favor  of  the  plaintiff,  they 
might,  "in  addition  to  actual  or  compensatory  damages,  award 


510  DAMAGES  IN  ACTIONS  FOR  V»RONGS. 

punitive  damages  or  'smart  money,'  as  it  is  sometimes  called, 
proportionate  to  the  degree  of  malice  or  wantonness  evinced  by 
the  defendant."  It  is  of  this  part  of  the  charge  that  the  de- 
fendant chielly  complains.  He  says  that  by  it  the  amount  of 
"exemplary"  damages  which  the  jury  might  award  to  the 
plaintiff  was  erroneously  left  entirely  at  large  to  the  discretion 
of  the  jury,  and  we  think  he  is  right  in  this  claim.  At  common 
law,  in  certain  actions  of  tort,  the  jury  were  at  liberty  to  award 
damages,  "not  only  as  a  satisfaction  to  the  injured  person,  but 
likewise  as  a  punishment  to  the  guilty,  to  deter  from  any  such 
proceeding  for  the  future,  and  as  a  proof  of  the  detestation  of  the 
jury  to  the  action  itself."  Pratt,  L.  C.  J.,  in  "Wilkes  v.  Wood, 
Lofft,  1,  18,  19;  Huckle  v.  Money,  2  Wils.  205;  Lake  Shore  Rail- 
way V.  Prentice,  147  U.  S.  101 ;  Goddard  v.  Grand  Trunk  Rail- 
way, 57  Me.  202 ;  Day  v.  Woodworth,  13  How.  363 ;  Dalton  v. 
Beers,  38  Conn.  529. 

]\Ioreover,  at  common  law,  the  amount  of  punitive  damages  that 
might  be  awarded  was  left  almost  entirely  to  the  discretion  of  the 
jury;  for  the  courts  generally  refused  to  grant  a  new  trial  for 
excessive  damages  of  this  kind.  In  Huckle  v.  Money,  supra, 
the  actual  damages  appeared  to  be  about  £20  sterling,  but  the 
verdict  was  for  £300 ;  and  the  court,  in  refusing  to  grant  a  new 
trial,  said:  "It  must  be  a  glaring  case,  indeed,  of  outrageous 
damages  in  a  tort,  and  which  all  mankind  at  first  blush  must 
think  so,  to  induce  a  court  to  grant  a  new  trial  for  excessive 
damages."  In  Day  v.  Woodworth,  13  How.  363,  14  L.  Ed.  181, 
in  speaking  of  the  discretion  of  the  jury  in  such  cases,  Justice 
Grieb  says:  "This  (i.  e.,  the  amount  of  'smart  money')  has  been 
always  left  to  the  discretion  of  the  jury,  as  the  degree  of  punish- 
ment to  be  thus  inflicted  must  depend  upon  the  particular  cir- 
cumstances of  each  case.  It  must  be  evident,  also,  that,  as  it  de-. 
pends  upon  the  degree  of  malice,  wantonness,  or  oppression,  or 
outrage  of  the  defendant's  conduct,  the  punishment  of  his  de- 
linquency cannot  be  measured  by  the  expenses  of  the  plaintiff 
in  prosecuting  his  suit.  It  is  true  that  damages  assessed  by  way 
of  example  may  thus  indirectly  compensate  the  plaintiff  for 
money  expended  in  counsel  fees,  but  the  amount  of  those  fees 
cannot  be  taken  as  the  measure  of  punishment  or  a  necessary 
element  in  its  infliction."  That  the  amount  of  punitive  damages, 
in  eases  where  such  damages  may  be  awarded,  is  generally  left 
to  the  discretion  of  the  jury,  see,  also,  Cyc.  vol.  13,  p.  119,  and 


ASSAULT  AND  BATTERY.  511 

cases  there  cited,  and  Hale  on  Damages,  c.  7,  par.  83,  and  Sedg- 
wick's Elements  of  Damages,  p.  85. 

This  power  of  a  jury,  at  common  law  in  certain  actions  of  tort, 
to  award  damages  beyond  mere  compensation,  and  practically  of 
such  an  amount  as  they  in  their  discretion  may  determine,  has 
resulted  in  the  doctrine  of  punitive  damages,  which  has  been 
called  "a  sort  of  hybrid  between  a  display  of  righteous  indigna- 
tion and  the  imposition  of  a  criminal  fine."  Haines  v.  Schultz, 
50  N.  J.  Law,  481.  This  doctrine  has  been  said  to  be  exceptional, 
anomalous,  logically  wrong,  and  at  variance  with  the  general 
rule  of  compensation  in  civil  cases ;  but,  notwithstanding  the  ob- 
jections urged  against  it,  it  prevails  in  many,  if  not  in  most, 
of  the  states.  Sedgwick's  Elements  of  Damages,  pp.  86,  87.  In 
this  state  the  common-law  doctrine  of  punitive  damages,  as  above 
outlined,  if  it  ever  did  prevail,  prevails  no  longer.  In  certain 
actions  of  tort  the  jury  here  may  award  what  are  called  punitive 
damages,  because  nominally  not  compensatory;  but  in  fact  and 
effect  they  are  compensatory,  and  their  amount  cannot  exceed 
the  amount  of  the  plaintiff's  expenses  of  litigation  in  the  suit, 
less  his  taxable  costs.  ' '  Such  expenses  in  excess  of  taxable  costs 
*  *  *  limit  the  amount  of  punitive  damages  which  can  be 
awarded."  Maisenbacker  v.  Concordia  Society,  71  Conn.  369, 
and  cases  there  cited. 

The  court,  it  is  true,  told  the  jury  that  in  estimating  punitive 
damages  they  might  consider  counsel  fees  and  other  expenses 
of  the  plaintiff  to  which  he  had  been  put  in  attempting  to  get 
compensation ;  but,  probably  by  an  oversight,  they  were  not  told 
that  the  amount  of  the  punitive  damages  which  they  might  award 
v.-as  limited  b}^  the  amount  of  those  expenses  less  the  taxable  costs 
in  the  suit;  and  afterwards  they  were  told  in  effect  that  the 
amount  of  punitive  damages  was  a  matter  that  rested  in  their 
discretion,  dependent  upon  "the  degree  of  malice  or  wantonness 
evinced  by  the  defendant." 

There  is  error,  and  a  new  trial  is  granted. 

The  other  judges  concurred. 

In  Lowe  v.  Ring.  123  Wis.  107,  it  was  held  that  in  actions  for  assault 
and  battery,  it  is  enough  to  justify  exemplary  damages  that  malice 
prompted  the  assault,  though  it  existed  only  a  moment  before  the  blow 
was  struck. 

For  damaires  for  assault  and  immoral  solicitations,  see  Bruske  v. 
Neugent,  lie  Wis.  48S. 

In  an  action  for  assault  and  battery,  plaintiff  can  recover  only  such 


512  DAMAGES  IN  ACTIONS  KOR  WRONGS. 

daniaj:cs  as  are  the  necessary  and  proximate  result  of  the  act  com- 
plained of.  "J'liere  can  be  no  recovery  in  such  a  case  for  the  loss  of 
an  otlice  of  uiato  in  the  navy  to  which  plaintiff  was  about  to  be 
appointed.     Brown  v.  t'uniiuiuss.  "  All.  507. 

In  assault  and  battery  the  jury  can  consider  whether  the  assault  was 
deliberate,  or  made  in  the  sudden  heat  of  passion.  Badostain  v. 
Graside.  115  Cal.  425. 

In  these  cases  the  question  of  verbal  provocation  is  important  as 
bearing  on  mitigation  of  damages.     Osier  v.  Walton,  67  N.  J.  L.  63. 

In  such  an  action  plaintiff  cannot  recover  for  fright  of  his  wife 
and  subse<iuent  loss  of  her  services.  Hutchinson  v.  Stern,  115  App. 
Div.  N.  Y.  71)1. 

Wounded  feelings  of  plaintiff,  humiliation  and  disgrace  can  lie  con- 
sidered by  the  jury  where  a  shop-girl  was  accused  of  theft,  led  through 
a  store  and  searched  and  $4.20  taken  from  her.  Henderson  v.  Agon, 
148  Mich.  253. 

Damages  (which  need  not  necessarily  be  nominal  damages  only) 
may  be  awarded  for  an  assault  and  battery  which  consisted  of  the 
defendant,  a  mill<man,  entering  the  sleeping  room  of  the  plaintiff  and 
forcibly  waking  him.  for  the  purpose  of  presenting  a  bill  to  him. 
Richmond  v.  Fisk,  100  Mass.  34. 


7.     Slander. 


LYNCH  V.  KNIGHT. 

House  of  Lords,  1861.     9  H.  L.  Cas.  577. 

Action  by  Knight  and  his  wife  to  recover  damages  for  slan- 
derous words  spoken  of  the  wife,  imputing  immoral  conduct  on 
her  part  prior  to  marriage.  The  special  damage  alleged  was 
loss  of  consortium  by  the  wife  by  reason  of  the  speaking  of  the 
words.    The  jury  found  a  verdict  for  150  1. 

Lord  Wensleydale.  Mental  pain  or  anxiety  the  law  cannot 
value,  and  does  not  pretend  to  redress,  when  the  unlawful  act 
complained  of  causes  that  alone ;  though  where  a  material  damage 
occurs,  and  is  connected  with  it,  it  is  impossible  a  jury,  in  esti- 
mating it,  should  altogether  overlook  the  feelings  of  the  party 
interested.  For  instance,  where  a  daughter  is  seduced,  however 
deeply  the  feelings  of  the  parent  may  be  affected  by  the  wicked 
act  of  the  seducer,  the  law  gives  no  redress,  unless  the  daughter 
is  also  a  servant,  the  loss  of  whose  service  is  a  material  damage 
which  a  jury  has  to  estimate;  when  juries  estimate  that,  they 


SLANDER.  513 

usually  cannot  avoid  considering  the  injured  honor  and  wounded 
feelings  of  the  parent. 

The  loss  of  such  service  of  the  wife,  the  husband,  who  alone 
has  all  the  property  of  the  married  parties,  may  repair  by  hiring 
another  servant ;  but  the  wife  sustains  only  the  loss  of  the  com- 
fort of  her  husband's  society  and  affectionate  attention,  which 
the  law  cannot  estimate  or  remedy.  She  does  not  lose  her  main- 
tenance, which  he  is  bound  still  to  supply.     *     *     * 


FLANNIGAN  v.  STAUSS. 

Wisconsin,  1907.     131  Wis.  94. 

In  an  action  for  slander  the  respondent  recovered  a  verdict 
for  $500  against  the  appellant,  and  judgment  was  accordingly 
entered,  from  which  this  appeal  is  taken. 

Timlin,  J.  The  appellant  assigns  two  errors  for  which  he  con- 
tends the  judgment  should  be  reversed.     *     *     * 

The  second  assignment  of  error  is  as  follows:  "The  court 
erred  in  denying  tlie  defendant 's  motion  for  a  new  trial. ' '  The 
motion  for  a  new  trial  specified  six  grounds,  but  the  brief  of 
appellant  states  that  this  assignment  of  error  is  based  on  the 
ground  that  the  damages  awarded  by  the  jury  are  excessive, 
and  this  is  the  only  ground  argued  in  support  of  that  assign- 
ment of  error.  It  is  conceded  that  the  words  charged,  if  used, 
were  actionable  per  se.  There  is  also  some  evidence  tending  to 
sustain  a  claim  for  punitory  damages.  It  is  contended,  in  sup- 
port'of  the  claim  that  the  damages  are  excessive,  that  the  evidence 
shows  the  respondent  to  be  "a  woman  extremely  common,  if  not 
coarse."  This  is  based  upon  the  language  alleged  to  have  been 
used  by  her  toward  the  appellant.  It  is  well  for  the  human  race 
that  female  chastity  is  not  peculiar  alone  to  the  educated  and  re- 
fined, but  was  also  characteristic  of  the  "common  and  coarse" 
mothers  of  the  stout  barbarians  who  laid  the  foundation  of  our 
present  system  of  education  and  refinement,  and  who  largely  by 
their  possession  and  preservation  of  this  virtue  became  the  master 
spirits  of  the  world.  It  is,  to  say  the  least,  no  indication  of  de- 
cadence when  the  body  of  our  people  represented  by  the  jury 
vigorously  resent  false  and  unfounded  imputations  against  female 
chastity. 

33 


514  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

It  is  next  contended  that  the  alleged  slanderous  words  were 
spoken  in  quarrel,  and  this  should  have  the  effect  of  reducing  the 
punitory'  damages.  No  doubt  this  is  a  proper  consideration  in 
mitigation  of  damages,  but  the  questions  presented  to  this  court 
are  quite  different  from  the  ordinary  consideration  of  mitigating 
circumstances  by  a  jury.  It  is  said  in  Donovan  v.  C.  &  N.  W. 
Ry.  Co.,  93  Wis.  373,  that  in  an  action  for  unliquidated  damages 
arising  from  a  tort  the  court  is  not  at  liberty  to  set  aside  a 
verdict  on  the  ground  that  it  is  excessive  unless  the  excess  is  such 
as  to  create  the  belief  that  the  jury  have  been  misled  either  by 
passion,  prejudice,  or  ignorance.  Applying  this  test  to  the  ver- 
dict in  question,  there  is  no  ground  of  reversal. 

The  judgment  of  the  circuit  court  is  affirmed. 

"We  think  the  rule  is  well  settled  that  it  is  competent  to  show  the 
reputation  previous  to  the  utterance  of  the  alleged  slander,  as  bearing 
upon  the  question  of  damage."  Moore,  J.,  in  Georgia  v.  Bond,  114 
Mich.  197. 

The  following  were  held  to  be  proper  instructions:  "If  you  believe 
from  the  evidence  that  at  the  time  of  the  publication,  the  plaintiff 
was  a  woman  of  disparaged  reputation,  then  that  must  be  taken  into 
consideration,  because  a  woman  whose  reputation  for  chastity  and 
virtue  is  bad  cannot  suffer  the  same  damage  as  a  woman  of  good  repu- 
tation." Fowler  v.  Fowler,  113  Mich.  576.  See  Kloths  v.  Hess.  126 
Wis.  .587. 

In  a  case  of  slanderously  imputing  want  of  skill  to  a  physician, 
social  degradation  and  disgrace  and  loss  of  professional  employment 
with  its  honors  and  rewards  can  and  ought  to  be  considered.  Swift  v. 
Dickerman,  31  Conn.  285. 

For  actions  in  slander  see  Pollard  v.  Lyon,  91  U.  S.  225;  Terwll- 
liger  V.  Wands,  17  N.  Y.  .54.  In  case  of  slander,  imputing  larceny  to 
the  plaintiff,  on  an  allegation  in  mitigation  of  damages,  the  defendant 
cannot  show  that  in  a  single  instance  plaintiff  behaved  badly,  but 
must  confine  himself  to  general  reputation  and  character.  Mahoney 
V.  Belford,  132  Mass.  393. 

Mental  suffering  is  an  element  of  general  damages  in  an  action  of 
libel.  Turner  v.  Hearst,  115  Cal.  394 ; — an  action  for  libel  in  publishing 
that  Lotta,  the  actress,  had  got  an  order  of  arrest  against  plaintiff, 
an  attorney  at  law.  Only  actual  damages  proved  can  be  recovered  in 
Michigan.    Andrews  v.  Booth,  148  Mich.  333. 


LIBEL.  515 

8.     Lihel. 
SICRA  V.  SMALL. 

Maine,  1895.     87  Me.  493, 

Whitehouse,  J.  This  was  an  action  of  libel  for  defamatory 
matter,  published  in  a  newspaper,  representing  that  the  plaintiff 
and  Mrs.  Blake  had  "eloped,"  and  were  living  together  in 
adultery. 

At  the  trial,  evidence  was  offered  by  the  defendant,  and  ad- 
mitted by  the  court,  subject  to  the  plaintiff's  right  of  exception, 
that  the  plaintiff's  "general  character"  was  bad  in  the  com- 
munity in  which  he  lived. 

I.  It  was  not  questioned  by  the  plaintiff  that,  in  actions  for 
libel  or  slander,  the  character  of  the  plaintiff  may  be  in  issue 
upon  the  question  of  damages;  but  it  is  contended  that  the  in- 
quiry should  be  restricted  to  the  plaintiff's  general  reputation  in 
respect  to  that  trait  of  character  involved  in  the  defamatory 
charge.     *     *     * 

In  this  class  of  cases,  the  defendant  may  introduce  evidence,  in 
mitigation  of  damages,  that  the  plaintiff's  general  reputation,  as 
a  man  of  moral  worth,  is  bad,  and  may  also  show  that  his  general 
reputation  is  bad  with  respect  to  that  feature  of  character 
covered  by  the  defamation  in  question ;  and,  as  to  the  admission 
of  such  evidence,  it  is  immaterial  whether  the  defendant  has 
simply  pleaded  the  general  issue,  or  has  pleaded  a  justification 
as  well  as  the  general  issue.  Stone  v.  Varney,  7  Mete.  (Mass.) 
86;  Leonard  v.  Allen,  11  Gush.  (Mass.)  241;  Eastland  v.  Cald- 
well, 2  Bibb  (Ky.)  21 ;  Powers  v.  Gary,  64  Me.  9 ;  Sutherland  on 
Damages,  679. 

In  Stone  v.  Varney,  supra,  the  libel  imputed  to  the  plaintiff 
"heartless  cruelty  toward  his  child,"  and  it  was  held  competent 
for  the  defendant  to  introduce  evidence,  in  mitigation  of  dam- 
ages, that  "the  general  reputation  of  the  plaintiff  in  the  com- 
munity, as  a  man  of  moral  worth,"  was  bad.  After  a  careful 
examination  of  the  authorities  touching  the  question,  the  court 
say,  in  the  opinion:  "Thin  review  of  the  adjudicated  cases,  and 
particularly  the  decisions  in  this  commonwealth  and  in  the  state 
of  New  York,  seems  necessarily  to  lead  to  the  conclusion  that 
evidence  of  general  bad  character  is  admissible  in  mitigntion  of 
damages.     *     *     *     n  cannot  be  just  that  a  man  of  infamous 


516  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

character  should,  for  the  same  libelous  inall.er,  be  entitled  to 
equal  damages  witii  the  man  of  unblemished  reputation ;  yet 
such  must  be  the  result,  unless  eharacter  be  a  proper  subject  of 
evidence  before  a  jury.  Lord  Ellenborough,  in  1  JMaule  &  S. 
286,  says:  'Certainly  a  person  of  disparaged  fame  is  not  en- 
titled to  the  same  measure  of  damages  with  one  whose  character 
is  unblemished,  and  it  is  competent  to  show  that  by  evidence.'  " 

In  Leonard  v.  Allen,  supra,  the  plaintiff  was  charged  with 
maliciously  burning  a  schoolhouse,  and  it  was  held  that,  in  the 
introduction  of  evidence  to  impeach  the  character  of  the  plaintiff, 
in  mitigation  of  damages,  the  inquiries  should  relate  either  to  the 
general  character  of  the  plaintiff  for  integrity  and  moral  worth, 
or  to  his  reputation  in  regard  to  conduct  similar  in  character 
to  the  offense  with  which  the  defendant  had  charged  him. 

In  the  recent  case  of  Clark  v.  Brown,  116  Mass.  505,  the 
plaintiff  was  charged  with  larceny.  The  trial  court  admitted 
evidence  that  the  plaintiff's  reputation  for  honesty  and  integrity 
was  bad,  and  excluded  evidence  that  his  reputation  in  respect  to 
thieving  was  bad.  But  the  full  court  held  the  exclusion  of  the 
latter  evidence  to  be  error,  and  reaffirmed  the  rule,  laid  down  in 
Stone  V.  Varney  and  Leonard  v.  Allen,  supra,  that  it  was  com- 
petent for  the  defendant  to  prove,  in  mitigation  of  damages, 
that  the  plaintiff's  general  reputation  was  bad,  and  that  it  was 
also  bad  in  respect  to  the  charges  involved  in  the  alleged  slander. 

In  Lamos  v.  Snell,  6.  N.  H.  413,  the  defendant's  right  to  in- 
quire into  the  plaintiff's  "general  character  as  a  virtuous  and 
honest  man,  or  otherwise,"  was  brought  directly  in  question ;  and 
it  was  determined  that  the  defendant  was  "not  confined  to  evi- 
dence of  character  founded  upon  matters  of  the  same  nature 
as  that  specified  in  the  charge,  but  may  give  in  evidence  the 
general  bad  character  of  the  plaintiff  *  *  *  in  mitigation  of 
damages,  and  for  this  inquiry  the  plaintiff  must  stand  prepared. ' ' 

In  Eastland  v.  Caldwell,  supra,  the  court  say,  in  the  opinion: 
"In  the  estimation  of  damages  the  jury  must  take  into  con- 
sideration the  general  character  of  the  plaintiff.  *  •  *  In 
this  case,  the  defendant's  counsel  was  permitted  by  the  court  to  I 
inquire  into  the  plaintiff's  general  character  in  relation  to  the 
facts  in  issue ;  but  we  are  of  opinion  he  ought  to  have  been  per- 
mitted to  inquire  into  his  general  moral  character,  without  rela- 
tion to  any  particular  species  of  immorality;  for  a  man  who  is 
habitually  addicted  to  every  vice,  except  the  one  with  which  he 


LIBEL.  517 

is  charged,  is  not  entitled  to  as  heavy  damages  as  one  possessing 
a  fair  moral  character.  The  jury,  who  possess  a  large  and  al- 
most unbounded  discretion  upon  subjects  of  this  kind,  could 
have  but  very  inadequate  data  for  the  quantum  of  damages  if 
they  are  permitted  only  to  know  the  plaintiff's  general  char- 
acter in  relation  to  the  facts  put  in  issue." 

With  respect  to  the  form  of  inquiry,  it  is  said  to  be  an  in- 
flexible rule  of  law  that  the  only  admissible  evidence  of  a  man's 
character,  or  actual  nature  and  disposition,  is  his  general  reputa- 
tion in  the  community  where  he  resides.  Chamb.  Best,  Ev.  256, 
note.  It  would  seem,  therefore,  that,  in  order  to  avoid  eliciting 
an  expression  of  the  witness'  opinion  respecting  the  plaintiff's 
character,  the  appropriate  form  of  interrogatory  would  be  an 
inquiry  calling  directly  for  his  knowledge  of  the  plamtiff 's  repu- 
tation in  the  community,  either  as  a  man  of  moral  worth,  wath- 
out  restriction,  or  in  the  particular  relation  covered  by  the  libel 
or  slander. 

II.  But  the  plaintiff  also  has  exceptions  to  the  following  in- 
struction in  the  charge  of  the  presiding  justice :  "I  am  requested 
by  the  counsel  for  the  defendant  to  instruct  you  that,  if  the 
plaintiff's  conduct  was  such  as  to  excite  the  defendant's  sus- 
picions, it  should  be  considered  in  mitigation  of  damages,  the 
plaintiff  alleging  that  he  had  never  been  suspected  of  the  crime 
alleged.    I  give  you  that  instruction. "     *     *     * 

The  obvious  objection  to  it  is  that  the  damages  in  an  action  of 
slander  are  to  be  "measured  by  the  injury  caused  by  the  words 
spoken,  and  not  by  the  moral  culpability  of  the  speaker."  We 
have  seen  that  the  defendant  is  permitted  to  prove  that  the 
plaintiff's  general  reputation  is  bad,  because  this  evidence  has  a 
legitimate  tendency  to  show  that  the  injury  is  small ;  but  the 
evidence  of  general  report  that  the  plaintiff  is  guilty  of  the  im- 
puted offense  is  inadmissible  for  the  purpose  of  reducing  dam- 
ages. Powers  V.  Gary,  supra;  Mapes  v.  Weeks,  4  Wend.  (N.  Y.) 
659;  Stone  v.  Vamey,  supra.  A  fortiori,  evidence  of  the  de- 
fendant's suspicions,  however  excited,  cannot  be  received  for 
such  a  purpose.    Watson  v.  ^Moore,  supra. 

This  instruction  to  the  jury  must  therefore  be  held  erroneous ; 
and  for  this  reason  the  entry  must  bo,  exceptions  sustained. 

Haskell,  J.  concurred  in  the  result. 


518  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

SMITH  V.  MATHEWS. 

New  York,  1S97.     152  X.  Y.  152. 

Bartlett,  J.  This  is  an  action  to  recover  damages  for  an 
alleged  libelous  publication  in  two  newspapers  of  the  defendants, 
and  a  jur>  rendered  a  verdict  in  favor  of  the  plaintiff  for  $4,000. 
The  general  term  of  the  late  superior  court  of  Buffalo  reversed 
the  judgment  entered  upon  the  verdict,  and  ordered  a  new  trial. 
A  single  question  is  presented  on  this  appeal.  The  learned  trial 
judge,  after  a  very  full  and  fair  charge  to  the  jury,  was  requested 
by  counsel  for  defendants  to  charge  "that,  unless  defendants 
were  moved  by  actual  malice,  the  jury  should  not  award  the 
plaintiff  damages  by  way  of  punishment."  The  court  replied: 
"Yes,  I  charge  you  they  must  be  moved  by  actual  malice;  but 
you  may  find  actual  malice  if  you  find  they  failed  to  make  an 
investigation  as  to  the  truthfulness  of  the  charge."  To  this 
charge  the  defendants  excepted.  Taken  as  abstract  propositions, 
both  the  request  of  defendants'  counsel  and  the  response  of  the 
court  involved  legal  error.  If  by  "  actual  malice ' '  the  defendants ' 
counsel  referred  to  actual  spite  or  wicked  intention  on  the  part  of 
defendants,  then  his  legal  proposition  is  unsound,  as  damages, 
by  way  of  punishment,  are  not  limited  to  actual  malice  as  thus 
defined.  If  the  trial  judge  meant  to  state  to  the  jury  that  a 
failure  on  the  part  of  the  defendants  to  investigate  the  truthful- 
ness of  the  charge  before  publication  entitled  them  to  find  ' '  actual 
malice"  in  the  sense  that  it  showed  the  defendants  were  moved 
hy  spite  and  v/icked  intention  against  the  plaintiff,  it  is  clearly 
erroneous  as  a  legal  proposition.  The  reversal  of  the  general 
term  rests  upon  this  alleged  error  in  the  charge,  for  the  reason 
that  prejudice  may  have  resulted  to  the  defendants  therefrom, 
as  the  jury  might  have  based  their  verdict  upon  actual,  as  dis- 
tinguished from  implied,  malice,  or  malice  in  law.  It  is  neces- 
sary, in  order  to  properly  decide  the  question  thus  presented, 
to  examine  the  entire  charge  to  the  jury  in  the  light  of  the  facts 
and  the  proceedings  at  the  trial.  The  defendants  published  the 
alleged  libel  in  two  newspapers  owned  by  them, — the  Buffalo 
Morning  Express,  issued  daily,  and  the  Buffalo  Illustrated  Ex- 
press, issued  weekly.  The  plaintiff,  at  the  time  of  the  publica- 
tion, was  a  young  married  woman,  living  with  her  husband 
and  children  in  Toronto,  province  of  Ontario,  moving  in  high 
social  circles,  and  possessed  of  a  good  reputation.    On  or  about 


LIBEL.  519 

June  14,  1890,  the  defendants  published  in  their  newspapers  an 
article  received  by  them  through  the  United  Press  Association, 
charging  that  the  plaintiff,  the  wife  of  a  Toronto  merchant,  had 
eloped  with  one  Rutherford,  a  young  bachelor  of  30 ;  that  the  in- 
cident had  created  a  great  stir  in  Toronto,  and  her  husband 
would  investigate,  etc.  It  was  admitted  by  defendants  at  the 
trial  that  there  was  no  elopement,  and  the  plaintiff  proved  that 
she  was  escorted  to  New  York  by  Rutherford  at  the  suggestion 
and  request  of  her  husband,  who  met  her  at  the  Grand  Central 
Station  on  their  arrival  in  that  city.  For  the  purposes  of  this 
appeal,  it  can  be  taken  as  admitted  that  the  article  complained 
of  was  a  gross  libel,  charging  the  plaintiff,  a  reputable  married 
woman,  with  the  gravest  offense  that  can  be  conunitted  by  a  wife 
and  mother;  that  it  was  published  in  the  two  newspapers  of 
defendants,  both  of  which  were  circulated  to  some  extent  in  the 
city  of  Toronto,  which  is  distant  70  miles  from  Buffalo. 

At  the  close  of  the  main  charge  the  defendants'  counsel  said: 
"I  except  to  that  portion  of  your  honor's  charge  in  which  you 
instruct  the  jury  that  they  may  give  damages  by  way  of  punish- 
ment, it  being  conceded  that  there  was  no  actual  malice  either 
upon  the  part  of  the  defendants  or  their  agent.  By  the  Court : 
You  will  not  misunderstand  the  court  upon  that  proposition. 
They  have  disclaimed  any  actual  malice,  and  the  court  has 
told  you  that  must  be  accepted  by  you  as  true ;  that  they  did  not 
at  the  time  actually  intend  to  inflict  injury;  consequently  from 
that  statement  you  would  not  be  justified  in  awarding  damages 
by  way  of  punishment.  But  if  you  find  that  they  could  have 
found  out  the  truthfulness  or  untruthfulness  of  this  charge 
that  they  made,  and  they  failed  to  make  any  investigation,  you 
would  be  able  to  find  such  action  upon  their  part,  or  upon  the 
part  of  their  agent,  was  a  wanton  act  of  negligence  from  which 
the  law  would  imply  malice,  and  you  would  be  authorized  to 
award  vindictive  damages,  if  you  so  find."  It  was  at  this  point, 
and  after  the  court  had  again  placed  correctly  before  the  jury 
the  precise  issue  and  the  rule  of  damages,  that  the  erroneous 
charge  was  made  upon  which  the  general  term  reversed,  and  to 
which  we  have  adverted.  We  are  unable  to  agree  with  the 
learned  general  term  that  it  cannot  be  said  with  reasonable  cer- 
tainty that  the  defendants  were  not  prejudiced  by  this  lapse  of 
the  trial  judge  in  telling  them  they  could  find  actual  malice  if 
they  found  the  defendants  had  failed  to  make  an  investigation 


520  DAMAGES  IN  ACTIONS  FOK  WRONGS. 

as  to  the  truthfulness  of  the  chnrgo.  The  entire  charge  disekises 
repeated  statements  to  the  jury  tliat  there  was  no  actual  malice 
on  the  part  of  the  defendants,  and  that,  if  they  were  to  be  held 
liable,  it  was  by  reason  of  implied  malice  for  a  reckless  and 
negligent  publication  of  the  libel,  and  we  are  satisfied  that  the 
jury  were  not  misled.  This  error  of  the  trial  judge  was  harm- 
less under  the  well-established  rule  that  it  may  often  occur  in 
a  charge  to  the  jury  that  particular  words  or  expressions  used, 
when  taken  by  themselves,  will  be  objectionable,  or  seem  to  be 
erroneous,  but  they  should  not  be  considered  independently  of 
the  context.  Chellis  v.  Chapman,  125  N.  Y.  214 ;  Sperry  v.  Miller, 
16  N.  Y.  407 ;  Losee  v.  Buchanan,  51  N.  Y.  492 ;  Railroad  Co.  v. 
Babcock,  154  U.  S.  201.  This  case  was  submitted  to  the  jury  in 
a  manner  most  favorable  to  the  defendants.  It  is  undisputed 
upon  the  evidence  that  this  publication  was  reckless  and  aegli- 
gent ;  nevertheless  the  trial  judge  submitted  that  question  to  the 
jury,  and  told  them  they  could  award  nominal,  actual,  or  puni- 
tive damages.  The  learned  counsel  for  the  defendants  insists 
that  punitive  damages  are  only  recoverable  in  case  of  actual 
malice,  when  the  wicked  intent  to  injure  exists.  The  rule  is 
otherwise,  and  it  has  been  repeatedly  held  in  this  state  that  a 
libel,  recklessly  or  carelessly  published,  as  well  as  one  induced 
by  personal  ill  will,  will  support  an  award  of  punitive  damages. 
Warner  v.  Publishing  Co.,  132  N.  Y.  181 ;  Holmes  v.  Jones,  121 
N.  Y.  461,  and  cases  cited ;  Id.,  147  N.  Y.  59. 

The  defendants  have  been  cast  in  heavy  judgment,  and  it  may 
be  that  a  smaller  verdict  would  have  answered  the  purposes  of 
justice  under  the  circumstances ;  but  this  publication  was  grossly 
negligent,  and  attacked,  without  the  shadow  of  justification,  the 
good  name  of  an  innocent  wife  and  mother,  charging  her,  in 
effect,  with  unfaithfulness  to  her  marriage  vows,  and  the  aban- 
donment of  her  children.  All  this  came  about,  not  because  the 
defendants  were  impelled  by  a  wicked  intent  to  injure  this 
plaintiff,  but  for  the  reason  that,  as  one  of  them  admitted  upon 
the  witness  stand,  it  was  not  their  custom,  on  receiving  articles 
of  news,  to  ascertain  their  truth  or  falsity  before  publication. 
The  publishers  who  adopt  this  reckless  rule  in  the  conduct  of 
their  business  must  abide  the  consequences.  The  order  appealed 
from  should  be  reversed,  and  the  judsrment  entered  upon  the  ver- 
dict, and  the  order  denying  a  new  trial  affirmed,  with  costs.  All 
concur.     Ordered  accordingly. 


LIBEL.  521 

TAYLOR  V.  HEARST. 

California,   1897.     118  Cal.   366. 

Action  for  libel.  Judgment  of  $500  in  favor  of  plaintiff,  from 
which  defendant  appeals. 

Henshaw,  J.  This  is  a  second  appeal.  The  facts  are  sub- 
stantially the  same  as  those  considered  upon  the  first  appeal. 
They  will  be  found  set  forth  at  length  in  Taylor  v.  Hearst,  107 
Cal.  262.  It  will  be  observed  that  the  question  of  express  malice, 
which  may  be  evidenced  either  by  a  willful  intent  to  injure,  or 
by  gross  carelessness,  was,  under  the  facts  and  the  law  as  laid 
down  in  the  former  opinion,  entirely  removed  from  the  case. 
This  was  the  view  taken  by  the  trial  court,  and  the  jury 'was  so 
instructed.  Plaintiff's  recovery,  therefore,  was  limited  to  com- 
pensatory damages.  Certain  questions  asked  of  defendant's  wit- 
nesses were  ruled  out  under  objections.  These  questions  were  ad- 
dressed to  the  good  faith  of  the  publication,  and  to  the  negligence 
of  the  publisher.  But  good  faith  and  reasonable  care  are  per- 
tinent inquiries  where  the  question  of  punitive  damages  is  in- 
volved, not  where,  the  matter  being  libelous  per  se,  and  its  pub- 
lication admitted,  the  recovery  is  expressly  limited  to  compen- 
satory damages;  for  a  plaintiff  under  such  facts  is  entitled  to 
compensatory  damages,  without  regard  to  the  good  faith  or  cau- 
tion which  attended  the  publication.  Wilson  v.  Fitch,  41  Cal, 
363;  Taylor  v.  Hearst,  107  Cal.  262;  Turner  v.  Hearst,  115  Cal. 
394 ;  McAllister  v.  Detroit  Free  Press  Co.,  76  Mich.  338 ;  Scrippa 
v.  Reilly,  38  Mich.  10 ;  Warner  v.  Publishing  Co.,  132  N.  Y.  185. 

Instruction  3,  given  by  the  court,  is  as  follows:  "Good  faith 
requires  of  a  publisher  that  he  exercise  the  care  and  vigilance 
of  a  prudent  and  conscientious  man,  wielding,  as  he  does,  the 
great  power  of  the  public  press.  There  must  be  an  absence,  not 
only  of  improper  motives,  but  of  negligence,  on  the  part  of  the 
defendant."  This  instruction  would  have  had  pertinency  if 
addressed  to  a  case  in  which  punitive  damages  were  claimed. 
Upon  the  facts  of  this  case  it  had  no  bearing,  for,  as  has  been 
said,  the  court  instructed  the  jury  as  matter  of  law  that  punitive 
damages  could  not  be  awarded.  No  injury,  therefore,  could  have 
been  worked  appellant. 

The  award  of  $500  for  compensatory  damages  cannot  be  re- 
garded as  excessive.  Wilson  v.  Fitch,  41  Cal.  363 ;  Gilman  v. 
McClatchy,  111  Cal.  606.  The  judgment  and  order  appealed 
from  are  affirmed.       We  concur:  McFarland,  J.;  Temple,  J. 


522  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

BUTLEK  V.  HOBOKEN  PRINTING  AND  PUB.  CO. 

New  Jersey,  1905.     73  N.  J.  L.  45. 

Reed,  J.  This  is  an  action  for  damages  for  libel,  defaming 
the  plaintift*.  The  plaintiff  was  a  professional  riile  expert.  Her 
professional  name  is  Annie  Oakley.  As  such  she  traveled  with 
Buffalo  Bill's  show  for  a  number  of  years.  The  Hoboken  Ob- 
server, published  by  the  defendant,  published  an  article  headed 
"Downfall  of  a  Famous  Woman  Sharpshooter.  Annie  Oakley, 
a  Victum  of  Drugs,  Sent  to  Jail. ' '  It  was  asserted  that  Annie 
Oakley  was  a  prisoner  in  the  Harrison  street  police  court;  that 
she  was  arrested,  charged  with  robbery ;  that  she  pleaded  guilty, 
and  was  fined ;  that  according  to  the  police  she  was  addicted  to 
the  use  of  drugs ;  that  she  was  formerly  with  Buffalo  Bill's  show; 
that  she  was  then  destitute,  and  forced  to  accept  shelter  from  an 
old  colored  man  named  Curtis;  that  a  justice  of  the  peace  sent 
her  to  bridewell  for  25  days.  For  the  injury  occasioned  by  this 
publication  this  action  was  brought,  and  a  verdict  of  $3,000  re- 
covered. This  hearing  is  upon  the  return  of  a  rule  to  show  cause 
why  this  verdict  should  not  be  set  aside  and  a  new  trial  granted. 
It  appears  that  the  same  item  was  sent  out  from  Chicago,  and 
was  published  in  a  number  of  newspapers  throughout  the  country. 
The  trial  justice  very  properly  charged  that  the  defendant  was 
liable  for  only  that  portion  of  the  entire  injury  resulting  from 
these  publications  as  could  be  attributed  particularly  to  the  de- 
fendant. The  trial  justice  also  properly  overruled  testimony  to 
show  the  particulars  of  actions  brought  against  other  newspapers 
for  publishing  a  similar  libel  and  the  amount  of  damages  re- 
ceived in  some  of  those  suits. 

There  is,  however,  another  phase  of  the  case  w^hich  seems  to 
call  for  more  consideration.  The  declaration  charged,  as  the  re- 
sult of  the  publications,  that  the  defendant  was  greatly  injured 
in  health  and  obliged  to  go  to  great  expense  for  procuring  physi- 
cians and  medicines.  The  trial  justice  charged  that  the  de- 
fendant was  responsible  for  so  much  of  the  injury  to  her  health 
and  resultant  disability  to  follow  her  profession  as  was  pro- 
duced by  this  article.  No  exception  was  taken  to  this  part  of 
the  charge,  nor  was  the  attention  of  the  trial  justice  called  to 
this  language,  nor,  indeed,  was  any  modification  of  this  language 
suggested.  The  counsel  for  the  defendant  now  insists  that  injury 
to  health  is  not  a  legitimate  element  of  damage  in  actions  for 


LIBEL.  523 

defamation  of  character.  Even  if  this  insistment  is  well 
grounded,  as  no  exception  was  taken  at  the  trial  to  the  charge, 
the  defendant  is  not  strictissimi  juris  entitled  to  now  raise  that 
point.  When  an  exception  is  taken  to  an  instruction  or  to  the 
admission  of  illegal  evidence,  the  court,  upon  motion  for  a  new 
trial,  will  not  set  aside  the  verdict  if  it  appears  that  justice  has 
been  done.  So,  on  the  other  hand,  a  verdict  may  be  set  aside 
when  the  rules  of  damages  adopted  are  erroneous  or  testimony 
concerning  them  irrelevant,  although  no  objection  was  made  at 
the  trial.  Stewart's  Digest,  pp.  838,  839,  §§  10,  11,  40;  Lippin- 
cott  V.  Souder,  8  N.  J.  Law,  161-165;  Hatfield  v.  C.  R.  R.,  33 
N.  J.  Law,  251.  The  Hoboken  Observer  is  a  local  newspaper 
circulating  in  the  southern  part  of  Hudson  county.  It  is  im- 
possible to  resist  the  conclusion  that  the  element  of  ill  health 
and  its  alleged  consequences  must  have  figured  most  influentially 
in  inducing  the  jury  to  award  $3,000  as  damages.  The  injury 
caused  by  this  publication  to  the  private  or  professional  reputa- 
tion of  the  plaintiff,  she  following  her  profession  in  Europe  as 
well  as  the  United  States,  could  hardly  have  been,  under  the  cir- 
cumstances, equivalent  to  $3,000.  Indeed,  in  her  testimony  the 
money  feature  of  special  importance  was  her  inability  to  shoot 
because  of  nervous  prostration  caused  by  this  and  other  publica- 
tions. By  reason  of  this,  she  says,  she  was  compelled  to  abandon 
an  arrangement  for  the  season  of  1903  by  which  she  was  to  re- 
ceive $150  a  week.  So  it  would  seem  clear  that  this  factor  must 
have  entered  into  the  assessment  of  damages  returned  by  the 
jury.  If,  therefore,  it  be  true  that  injury  to  the  health  of  a 
libeled  person  and  the  consequences  flowing  therefrom  is  not  a 
legitimate  ground  for  assessing  damages,  a  new  trial  should  be 
directed,  although  the  error  crept  into  the  trial  without  ob- 
jection. 

The  case  upon  the  authority  of  which  the  defendant's  insist- 
ment is  grounded  is  Terwilliger  v.  Wands,  17  N.  Y.  54.  That 
was  an  action  for  slander  charging  the  plaintiff  with  unchastity. 
The  special  damages  proved  were  impaired  health  and  mental 
trouble  caused  by  the  spoken  words.  The  words  spoken  were 
not  actionable  in  themselves,  and  so  it  required  proof  of  some 
special  damages  to  support  the  action.  It  was  held  that  ill 
health,  although  actually  produced  by  the  slander  was  not,  in  a 
legal  view,  a  natural  or  ordinary  consequence  of  the  slander.  This 
case  was  decided  in  1858.    Two  years  later  the  English  Court  of 


624  DAMAGES  IN  ACTIONS  FOli  WRONGS. 

Exchequer,  in  Allsop  v.  Allsop,  5  Hurl.  &  N.  534,  was  called 
upon  to  deal  with  an  action  for  slander,  in  which  damages  were 
claimed  for  sickness  caused  by  a  false  charge  of  unchastity.  Pol- 
lock, C.  B.,  said:  "There  is  no  precedent  for  any  such  special 
damage  as  that  laid  in  the  declaration  being  made  a  ground  of 
action,  so  as  to  render  actionable  what  would  otherwise  not  be  so. 
*  *  *  This  particular  damage  depends  upon  the  tempera- 
ment of  the  party  affected,  and  it  may  be  laid  down  that  ill- 
ness, arising  from  the  excitement  which  the  slanderous  language 
may  produce,  is  not  that  sort  of  damage  which  forms  a  ground 
of  action."  In  Lynch  v.  Knight,  decided  in  the  House  of  Lords 
in  1864,  and  reported  in  9  House  of  Lords  Cases,  593,  and  in  8 
English  Rul.  Cases,  382,  388,  Lord  Brougham,  in  giving  judg- 
ment, remarked :  ' '  I  think  Allsop  v.  Allsop  was  well  decided, 
and  that  mere  mental  suffering  or  sickness  supposed  to  be  caused 
by  the  speaking  of  words  not  actionable  in  themselves,  would  not 
be  special  damages  to  support  the  action."  Lord  Wensleysdale 
said:  "Mental  pain  or  anxiety  the  law  cannot  value,  and  does 
not  pretend  to  redress  when  the  unlawful  act  complained  of 
causes  that  alone ;  though,  where  a  material  damage  occurs  and 
is  connected  with  it,  it  is  impossible  a  jury  in  estimating  it  should 
altogether  overlook  the  feelings  of  the  party  interested.  For  in- 
stance, when  a  daughter  is  seduced,  however  deeply  the  feelings 
of  the  parent  may  be  affected  by  the  wicked  act  of  the  seducer, 
the  law  gives  no  redress,  unless  the  daughter  is  also  a  servant, 
the  loss  of  whose  services  is  a  material  damage,  which  a  jury  has 
to  estimate.  When  juries  estimate  that,  they  usually  cannot 
avoid  considering  the  injured  honor  and  the  wounded  feelings  of 
the  parent." 

Each  of  the  three  cases  mentioned  was  an  action  for  slander, 
and  the  slander  charged  was  for  speaking  words  which  were  not 
actionable  per  se,  and  only  became  such  if  followed  by  special 
damage.  The  question  in  each  case  was  in  respect  to  the  kind  of 
special  damage  which  would  give  rise  to  a  cause  of  action. 
These  cases  seem  to  settle  the  rule  that  neither  mental  suffering 
nor  physical  sickness  will  alone  do  so  in  that  class  of  actions. 
The  present  action  belongs  to  a  different  class.  The  words  for 
which  damages  are  sought,  not  only  charged  the  defendant  with 
a  crime  and  so  were  actionable  per  se,  but  they  were  printed  and, 
as  a  libel,  were  similarly  actionable.  In  this  class  of  actions  for 
defamation  of  character,  upon  proof  of  the  publication,  damages 


LIBEL.  525 

are  presumed  to  have  accrued;  therefore  in  such  actions  it  is 
not  necessary  for  the  plaintiff  in  his  declaration  to  plead  special 
damages  in  order  to  support  his  action.  If  he  desires  to  prove 
special  damages  he  must  plead  them,  it  being  the  rule  that  no 
evidence  shall  be  received  of  any  loss  or  injury  which  the  plaintiff 
sustains  from  the  words  used  unless  it  be  specially  stated  in  the 
declaration  and  if  named  it  must  be  proved  as  stated.  2  Saund- 
ers on  Pleading  &  Evidence,  marg.  p.  927. 

At  this  point  arises  the  important  question  whether  the  range 
of  what  may  be  pleaded  or  proved  as  damages  is  wider  in  this 
class  of  actions  than  in  those  which  depend  entirely  upon  proof 
of  special  damages.  Mr.  Odgers,  after  stating  the  rule  respect- 
ing special  damages  in  the  first  class,  if  they  have  been  properly 
pleaded  proceeds  to  say  that  the  law  is  not  quite  so  strict  in  ac- 
tions where  the  words  are  actionable  per  se;  and  that  although 
when  the  words  are  not  actionable  per  se,  mental  distress,  illness, 
etc.,  do  not  constitute  special  damages,  yet  where  the  words  are 
actionable  per  se  the  jury  may  take  such  matters  into  their 
consideration  in  according  damages.  Odgers  on  Libel  &  Slander. 
His  authority  for  this  statement  is  the  remark  of  Lord  Wensleys- 
dale  in  hynch  v.  Knight,  supra,  already  quoted.  Now  it  is  to  be 
observed  that  Lord  Wensleysdale  did  not  say  that  mental  suffer- 
ings are  to  be  regarded  as  a  subject  for  special  damages  when 
the  words  are  actionable  per  se.  "What  he  did  say  was  that  a 
jury,  if  permitted  to  return  damages  for  a  legal  cause  of  action, 
would  be  influenced  by  the  considerations  mentioned.  It  is  con- 
ceded, however,  that  while  mental  suffering  will  not  support  an 
action  for  words  not  actionable  per  se,  nevertheless,  damages  for 
mental  suffering  may  be  assessed  in  actions  for  defamation  ac- 
tionable per  se.  In  Massachusetts,  such  damages  for  mental 
distress  are  regarded  as  general,  and  are  recoverable,  without 
being  specially  pleaded.  Chesley  v.  Thompson,  137  Mass.  136; 
Lombard  v.  Lennox.  155  Mass.  76.  In  New  York  such  damages 
seem  to  be  regarded  as  punitive  and  assessable  only  in  cases 
where  there  is  proof  of  actual  malice.  Brooks  v.  Harison,  91  N. 
Y.  83-92 ;  Warner  v.  P.  P.  Co..  132  N.  Y.  181 ;  Van  Ingen  v.  Star 
Co..  1  App.  Div.  429.  affirmed  157  N.  Y.  695. 

The  right  of  a  libeled  person  to  recover  damages  as  a  compen- 
sation for  her  feelings  was  recognized  by  our  Court  of  Errors 
and  Appeals  in  the  ease  of  Knowlden  v.  Guardian  Printing  Co., 
report(Hl  in  40  Vronm  670.     Tnrleed.  mental  anguish,  mortifica- 


526  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

tion,  and  anger  are  the  necessary  results  from  defamation  of 
character,  and  so  may  be  said  to  be  legally  inferred  from  the 
fact  of  defamation.  But,  when  physical  injury  is  predicated  of 
the  defamatory  words  spoken,  it  cannot  be  said  that  it  is  either 
the  necessary  or  natural  consequence  therefrom.  In  rare  in- 
stances physical  sickness  may  result  from  mental  worry,  but  it  is 
an  exception  to  the  rule.  Even  then,  it  is  a  step  removed  from 
the  first  result,  and  cannot  be  said  to  be  the  proximate  con- 
sequence of  the  dafamatory  words.  The  entire  absence  of  any 
precedent,  so  far  as  I  have  examined  the  question,  for  the  assess- 
ment of  damages  in  this  class  of  cases  for  physical  ailment  is  a 
remarkable  feature  in  the  administration  of  the  law,  if  such 
right  to  damages  exists.  There  is  an  abundance  of  authority  sup- 
porting the  assessment  of  damages  for  mental  anxiety,  but  none 
for  damages  for  physical  sickness.  The  same  may  be  said  of  the 
other  class  of  actions  alluded  to  by  Lord  "Wensleysdale,  actions 
for  seduction  based  upon  the  fiction  of  loss  of  services.  By  in- 
veterate usage,  the  relations  of  master  and  servant  having  been 
established,  the  parent  is  to  be  permitted  to  recover  for  injured 
feelings.  But  it  admittedly  rests  upon  the  ground  of  inveterate 
usage,  and  not  upon  any  logical  basis.  Sedgwick  on  Damages,  p 
542. 

In  the  present  case  the  damages  resulting  from  physical  ill- 
ness which  the  jury  was  permitted  to  consider  did  not  stop  with 
the  mere  compensation  for  such  physical  pain  and  expenses  for 
medical  treatment.  The  important  loss  resulting  from  her 
broken  health  was  that  she  was  compelled  by  reason  of  it  to 
abandon  her  profession  for  a  season  at  a  loss  of  $150  a  week.  This 
alleged  loss,  it  is  perceived,  did  not  result  from  failure  to  procure 
engagements  by  reason  of  loss  of  professional  standing  caused 
by  the  defendant's  words.  The  loss  of  employment,  therefore, 
was  not  the  result  of  injured  reputation,  but  of  physical  inability 
to  shoot.  This  inability  is  traced  back  to  mental  worry,  which 
resulted  from  knowledge  by  the  plaintiff  that  she  had  been  de- 
famed. I  am  of  the  opinion  that  damages  for  loss  of  earnings 
so  resulting,  as  well  as  for  physical  distress,  are  too  remote.  Nor 
can  the  amount  of  damages  found  be  vindicated  upon  the  ground 
that  they  might  have  been  exemplary.  The  absence  of  actual 
malice  was  admitted  by  the  plaintiff  upon  the  trial,  and  the 
right  to  recover  punitive  damages  was  disclaimed. 

The  rule  should  be  made  absolute. 


FALSE  IMPRISONMENT.  527 

Punitive  damages  may  be  awarded  for  libel  where  defendant  refuses 
to  publish  a  retraction,  but  in  fact  republishes  the  libel.  Crane  v. 
Bennett,  177  N.  Y.  106.  But  such  damages  cannot  be  awarded  if  the 
libel  was  published  without  malice.  Oilman  v.  McClatchy,  111  Col. 
606.  But  where  defendant  acted  with  reckless  and  careless  indiffer- 
ence to  the  rights  of  the  plaintiff,  and  took  no  pains  to  get  a  correct 
story  and  details,  punitive  damages  were  properly  awarded.  Russell 
V.  Washington  Post,  31  App.  D.  C.  277.  See  also  Bee  Pub.  Co.  v. 
World  Pub,  Co.,  82  N.  W.  Rep.  28;  Pellardis  v.  Journal  Print  Co.,  99 
Wis.  156 ;  Bishop  v.  Journal  Newspaper  Co.,  168  Mass.  327. 


9.    False  Imprisonment. 
WEGNER  V.  RISCH. 

Wisconsin,  1902.     114  Wis.  270. 

This  is  an  action  for  false  imprisonment.  The  evidence  tended 
to  show  that  early  of  a  Sunday  morning,  before  4  o'clock,  the 
plaintiff  was  rambling  about  the  neighborhood  of  the  beat  of  the 
defendant,  who  was  a  policeman  in  the  western  part  of  Milwau- 
kee, in  a  manner  to  excite  attention  and  suspicion.  Upon  in- 
quiry, she  somewhat  incoherently  stated  a  desire  to  find  a  man 
from  whom  she  wanted  to  get  some  money,  and  at  last,  under 
the  guidance  of  the  defendant,  found  the  house,  and  entered  into 
colloquy  with  the  man  en  the  subject  of  money.  He  told  the 
policeman  that  she  was  crazy.  The  policeman  left  them  in  violent 
controversy.  Shortly  afterward  his  attention  was  called  to  her 
in  another  part  of  his  beat  by  persons  who  had  observed  her  wan- 
dering aimlessly  about,  and  who  suggested  that  she  needed  to  be 
taken  care  of.  The  defendant  talked  with  her  again.  She  told 
him  she  lived  on  Jackson  street,  far  on  the  other  side  of  the  city, 
but  could  not  tell  where  on  Jackson  street.  He  urged  her  to  go 
home,  and  then  told  her  that  if  she  would  not  go  home  he  would 
have  to  send  her  to  the  station,  to  which  she  responded,  "All 
right.*'  He  accordingly  conducted  her  to  the  nearest  patrol  box, 
called  a  wagon,  and  turned  her  over  to  it  with  the  explanation 
that  she  had  been  acting  strangely,  and  he  had  arrested  her  for 
safe  keeping.  She  was  then  taken  to  the  station  house,  where 
she  was  not  confined,  but  remained  something  like  an  hour,  gave 
her  residence,  and  was  allowed  to  go  home.  According  to  the 
evidence  of  the  defendant's  witnesses,  there  was  much  to  justify 


528  DAMAGES  IN  ACTIONS  l-'Oli  WRONGS. 

the  belief  that  the  woman  was  demented  and  unfit  to  care  for 
herself  or  be  at  large.  The  plaintiff's  testimony  gave  a  very- 
different  color  to  the  whole  transaction.  The  jury  found  a  ver- 
dict for  the  plaintiff,  and  assessed  her  damages  at  six  cents, 
which  verdict  her  attorneys  moved  to  set  aside  on  the  ground  of 
inadequacy  of  damages.  That  motion  being  overruled,  judgment 
was  entered  on  the  verdict,  from  which  the  plaintiff  appeals. 

Dodge,  J.  After  careful  examination  of  the  record,  we  feel 
constrained  to  the  conclusion  that  the  trial  court  was  guilty  of  no 
abuse  of  his  discretion  in  refusing  to  set  aside  the  verdict  on  the 
plaintiff's  motion.  Conceding,  as  perhaps  the  evidence  estab- 
lishes without  controversy,  that  there  was  technically  an  unlaw- 
ful arrest,  in  that  the  plaintiff  was  committing  neither  any  crime 
nor  a  breach  of  the  peace,  yet  the  defendant's  testimony  that  he 
arrested  her  because  he  believed  her  insane  and  in  need  of  care 
for  her  o\ati  safety  is  of  course  sufficient  to  support  such  view  of 
his  conduct  by  the  jury.  In  the  absence  of  any  violence  and  of 
any  indignities  other  than  the  mere  peaceful  and  orderly  trans- 
portation of  the  defendant  to  a  place  of  safety,  when  she  was 
momentarily  exposing  herself  to  a  far  higher  degree  of  noto- 
riety and  disgrace,  although  technically  an  unlawful  deprivation 
of  her  liberty,  we  cannot  say  that  the  jury  acted  wholly  outside 
of  their  proper  province  in  finding  onl}^  nominal  damages.  The 
rules  of  law  which  place  that  question  more  than  all  others  in  the 
hands  of  a  jury  are  too  trite  to  need  more  than  suggested  ref- 
erence. Henderson  v.  McReynolds,  60  Hun,  579,  and  Brad- 
laugh  V.  Edwards,  11  C.  B.  (N.  S.)  377,  present  extreme  illus- 
trations of  eases  in  which  courts  have  declined  to  set  aside  ver- 
dicts for  nominal  damages.  In  this  case  the  spoken  evidem-e 
was,  of  course,  much  supplemented  to  the  jury  and  the  trial 
court  by  the  personal  appearance  both  of  the  plaintiff  and  de- 
fendant ;  and  that  court  having,  in  its  discretion  and  with  these 
advantages,  approved  the  jury's  action,  we  cannot,  in  the  light 
of  any  information  contained  in  the  record,  overrule  his  con- 
clusion, whether  as  an  original  question  we  might  or  might  not 
have  reached  the  same  conclusion. 

Judgment  affirmed. 


FALSE  IMPRISONMENT.  529 

CRAVEN  V.  BLOOMINGDALB. 

New  York,  1902.     171  N.  Y.  439. 

An  action  to  recover  damages  for  illegal  arrest. 

Bartlett,  J.  We  are  of  opinion  that  the  learned  trial  judge 
failed  to  instruct  the  jury  properly  as  to  the  law  of  punitive  or 
vindicative  damages.  A  brief  statement  of  the  facts  is  necessary 
in  order  to  present  the  legal  question  involved.  The  defendant 
is  the  proprietor  of  a  department  store  in  the  city  of  New  York, 
under  the  firm  name  of  Bloomingdale  Bros.  In  the  conduct  of 
the  business  a  large  number  of  wagons  owned  by  defendant  are 
used  in  delivering  goods  purchased.  The  driver  of  the  wagon 
involved  in  this  action  to  recover  damages  for  false  imprisonment 
was  employed  under  a  written  contract  which  authorized  the  de- 
fendant to  charge  him  for,  and  deduct  from  his  wages,  any 
money,  or  the  value  of  any  merchandise,  which  might  be  lost, 
damaged,  destroyed,  or  stolen  after  being  placed  in  his  charge. 
The  driver  also  gave  a  bond,  with  surety,  imder  this  contract. 
The  plaintiff  purchased  an  article  which,  on  delivery,  proved  un- 
satisfactory. It  was  returned,  and  another  sent  in  exchange. 
Full  pa^-ment  had  been  made  on  the  original  purchase,  and  on 
the  second  article  a  small  balance  was  due  defendant.  An  error 
was  made  in  defendant's  store,  by  which  the  driver  was  required 
to  collect  tbe  full  price  of  the  article,  and  not  the  balance  actually 
due.  The  driver,  on  delivering  the  second  article,  insisted  on 
full  payment,  or  a  return  of  the  property.  An  altercation  ensued 
between  the  plaintiff  aud  the  driver,  and  as  the  latter  was  denied 
full  payment,  or  the  return  of  the  property,  he  sent  out  for  a 
policeman  ;  and  the  result  was  that  plaintiff*  was  arrested,  taken 
to  the  police  station,  and.  on  a  statement  of  the  facts,  at  once 
discliarged.  The  matter  being  brought  to  defendant's  attention, 
he  said  he  "was  sorry  that  such  a  thing  had  happened,"  and 
asked  what  he  could  do.  The  plaintiff  demanded  the  return  of 
his  money,  and  stated  he  desired  to  have  no  further  business 
with  the  firm.  This  action  was  then  commenced,  and  the  jury 
rendered  a  verdict  for  .1^1.250.  The  appellate  divison  affirmed 
the  judgment  entered  upon  this  verdict. 

"We  have  here  presented  the  question  as  to  the  proper  measure 
of  damages  in  the  case  of  a  merchant  whose  servant,  in  the  deliv- 
ery of  goods,  causes  the  illegal  arrest  of  a  customer.  The  fact 
that  the  master  was  not  present  when  the  arrest  was  made  does 

34 


530  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

not  necessarily  absolve  him  from  liability.  If,  on  the  evidence, 
the  jury  could  tiud  that  the  master  authorized  the  arrest,  or  sub- 
sequently ratilied  it,  he  must  respond  in  damages.  In  the  ease 
before  us  it  is  not  claimed  the  master  directly  authorized  the  ar- 
rest of  the  plaintiff,  or  ratified  it  when  brought  to  his  attention. 
It  was,  however,  a  question  for  the  jury  to  determine,  if  the 
evidence  warranted  it,  whether  the  manner  in  which  the  defend- 
ant conducted  his  business,  through  the  intervention  of  the 
driver,  constituted  such  a  system  as  to  render  the  act  of  the 
driver  the  act  of  the  master. 

After  the  trial  judge  had  completed  his  main  charge,  he  took 
up  the  plaintiff's  requests,  and  said:  "I  do  not  think  I  made  it 
very  clear  to  the  jury, — the  distinction  between  compensatory 
and  punitive  damages.  It  is  as  follows :  Damages  in  an  action 
for  false  imprisonment,  for  humiliation,  insult,  and  wounded  sen- 
sibilities, are  regarded  in  law  as  compensatory  damages.  If  you 
find  for  the  plaintiff,  when  you  have  reached  some  sum, — made 
up  your  mind ;  some  sum  that  you  think  is  reasonable  and  right 
in  the  way  of  compensatory  damages, — then  you  have  the  power, 
if  you  think  proper,  to  add  to  that  some  sum  by  way  of  punitive 
or  vindicative  damages.  But  your  verdict  will  be  an  aggregate 
sum."  At  the  close  of  the  charge  the  defendant's  counsel  ex- 
cepted to  that  portion  of  it  in  which  the  court  said  that  it  was 
within  the  province  of  the  jury  to  give  punitive  or  vindicative 
damages ;  also  where  the  court  said  that  the  jury  have  the  right 
to  add  a  sum  of  punitive  damages.  The  defendant's  fifth  request 
to  charge  reads,  "That  if  the  jury  finds  in  favor  of  the  plain- 
tiff, they  may  not  award  punitive  damages."  The  court  refused 
to  so  charge,  and  an  exception  was  taken. 

The  learned  appellate  division  placed  its  affirmance  of  the 
judgment  of  the  trial  term  upon  the  rule  laid  down  in  Lynch  v. 
Eailroad  Co.,  90  N.  Y.  77,  which  was  an  action  for  false  im- 
prisonment, and  quoted  the  language  of  the  court  in  that  case. 
*  *  *  We  are  unable  to  see  the  similarity  between  these  two 
cases.  The  gate  keeper  in  the  case  cited  rested  under  the  duty  to 
collect  a  ticket  before  a  passenger  was  allowed  to  pass  out.  The 
passenger  claimed  that  he  had  lost  his  ticket,  and  the  gate 
keeper  assumsd  it  to  be  his  duty  to  detain  him  and  prosecute  him 
under  the  circumstances.  The  case  at  bar  presents  a  very  dif- 
ferent situation.  The  driver's  remark,  "I  have  got  to  have  the 
stove  or  the  money,  because  T  am  responsible  for  it,"  should  be 


FALSE  IMPRISONMENT.  531 

considered  by  the  jury  in  determining  whether  the  driver  acted 
for  the  defendant  or  himself.  If  the  jury  are  to  pass  upon  the 
question  whether  a  system  existed  in  defendant's  business  au- 
thorizing this  arrest,  they  must  also  consider  the  circumstances 
under  which  the  driver  was  employed.  He  was  required  to  give 
security  on  entering  his  employment,  and  was  personally  liable 
to  his  employer  for  the  goods  intrusted  to  his  care,  or  the  money 
called  for  by  his  list.  Undoubtedly,  in  the  case  supposed  by  the 
appellate  division, — of  an  article  taken  from  the  wagon  by  a  thief 
while  passing  along  the  street, — the  driver,  whether  acting  in  his 
own  behalf  or  that  of  his  master,  would  be  justified  in  pursu- 
ing the  thief  and  causing  his  arrest.  "We  are  of  the  opinion 
that  the  jury  retired  without  an  accurate  conception  of  the  rule 
of  damages  in  actions  for  false  imprisonment.  It  is  undoubtedly 
the  rule  that  the  master  is  liable  in  compensatory  damages  if  his 
manner  of  conducting  business  justified  the  jury  in  believing 
that  the  servant  was  acting  within  the  scope  of  his  employment 
and  discharging  the  ordinary  duties  imposed  upon  him. 

The  case  at  bar  is  clearly  distinguishable  from  the  recent  case 
of  Stevens  v.  O'Neill,  51  App.  Div.  364,  64  N.  Y.  Supp.  663, 
affirmed  in  169  N.  Y.  375,  62  N.  E.  424.  In  that  case  the  plain- 
tiff had  been  arrested  in  the  store  of  the  defendant  under  cir- 
cumstances peculiarly  distressing  and  humiliating.  The  above 
case,  and  other  cases  of  like  character,  involving  the  conduct  of 
retail  stores,  disclose  a  detective  system  which  authorized  officers 
and  others  in  the  employ  of  merchants  to  subject  customers  sus- 
pected of  theft  to  personal  search  and  other  indignities.  A  system 
was  thus  established  which  made  the  acts  of  those  effecting  the 
arrest  clearly  those  of  the  master.  The  case  as  bar  is  distinguish- 
able from  this  line  of  authorities.  In  Voltz  v.  Blaekmar,  64  N. 
Y.  440,  Judge  Andrews  (page  444)  uses  this  language:  "In 
punitive  actions,  as  they  are  sometimes  termed,  such  as  libel,  as- 
sault and  battery,  and  false  imprisonment,  the  conduct  and  mo- 
tive of  the  defendant  is  open  to  inquiry  with  a  view  to  the  assess- 
ment of  damages;  and  if  the  defendant,  in  committing  the  \\T:'ong 
complained  of,  acted  recklessly  or  willfully  or  maliciously,  with  a 
design  to  oppress  or  injure  the  plaintiff,  the  jury,  in  fixing  the 
damages,  may  disregard  the  rule  of  compensation,  and  beyond 
that  may,  as  a  punishment  to  the  defendant,  and  as  a  protec- 
tion to  society  against  the  violation  of  personal  rights  and  social 
order,  award  such  additional  damages  as,  in  their  discretion,  they 


532  DAMAGES  IN  ACTIONS  FOU  WRONGS. 

may  deem  proper.  The  same  rule  has  been  held  to  apply  in  the 
ciise  of  willful  injury  to  property,  and  in  actions  of  tort  founded 
upon  negligence  amounting  to  misconduct  and  recklessness.  Til- 
lotson  V.  Cheetham,  3  Johns,  56,  King  v.  Root,  4  Wend,  113; 
Tifft  V.  Culver,  3  Hill,  180;  Cook  v.  Ellis,  6  Hill,  466;  Burr  v. 
Burr,  7  Hill,  207;  Taylor  v.  Church,  8  N.  Y.  460;  Hunt  v.  Ben- 
nett, 19  N.  Y.  173;  Millard  v.  Brown,  35  N.  Y.  297."  In  Cleg- 
horn  V.  Railroad  Co.,  56  N.  Y.  44,  the  question  involved  was  that 
of  the  negligence  of  an  employe;  and  Church,  C.  J.,  said:  "For 
the  purposes  of  this  case  the  following  rule  may  be  laid  down  as 
fairly  deducible  from  the  authorities,  viz.:  For  injuries  by  the 
negligence  of  a  servant  while  engaged  in  the  business  of  the 
master,  within  the  scope  of  his  employment,  the  latter  is  liable 
for  compensatory  damages;  but  for  such  negligence,  however 
gross  or  culpable,  he  is  not  liable  to  be  punished  in  punitive 
damages  unless  he  is  also  chargeable  with  gross  misconduct. 
*  *  *  Something  more  than  ordinary  negligence  is  requisite. 
It  must  be  reckless  and  of  a  criminal  nature,  and  clearly  estab- 
lished." 

In  Railroad  Co.  v.  Prentice,  147  U.  S.  101,  the  law  of  punitive 
damages  is  exhaustively  discussed. 

It  is  to  be  observed  that  neither  in  Mott  v.  Ice  Co.,  73  N.  Y. 
547,  nor  in  Lynch  v.  Railroad  Co.,  90  N.  Y.  77,  cited  by  the 
learned  appellate  division,  was  the  law  of  punitive  damages  dis- 
cussed, nor  did  the  court  below  consider  the  question.  In  Mott 
V.  Ice  Co.,  supra,  the  question  was  whether  the  driver  of  defend- 
ant's ice  wagon  ran  into  plaintiff's  carriage  maliciously  or  in- 
tentionally, or  whether  the  collision  was  due  to  negligent  and 
reckless  driving  on  the  part  of  defendant's  servant.  Judge 
Allen,  in  writing  for  the  court  in  this  case,  after  alluding  to  the 
liability  of  the  master  for  the  acts  of  his  servant  within  the 
scope  of  his  employment,  said :  * '  But  if  the  servant  goes  outside 
of  his  employment,  and,  without  regard  to  his  service,  acting 
maliciously,  or  in  order  to  effect  some  purpose  of  his  own, 
wantonly  commits  a  trespass,  or  causes  damage  to  another,  the 
master  is  not  responsible,  so  that  the  inquiry  is  whether  the 
wrongful  act  is  in  the  course  of  the  employment,  or  outside 
of  it,  and  to  accomplish  a  purpose  foreign  to  it.  In  the  lat- 
ter case  the  relation  of  master  and  servant  does  not  exist  so  as 
to  hold  the  master  for  the  act.  Croft  v.  Alison,  4  Bam.  &  Aid. 
590 ;  Wright  v.  Wilcox,  19  Wend.  343 ;  Vanderbilt  v.  Turnpike 


FALSE  IMPRISONMENT.  533 

Co.,  2  N.  Y.  479;  Mali  v.  Lord  39  N.  Y.  381 ;  Fraser  v.  Freeman, 
43  N.  Y.  566 ;  Higgins  v.  Railroad  Co.,  46  N.  Y.  23 ;  Rounds  v. 
Railroad  Co.,  64  N.  Y.  129 ;  Isaacs  v.  Railroad  Co.,  47  N.  Y.  122." 
The  learned  judge,  after  discussing  the  evidence  in  detail,  said : 
"The  whole  evidence  of  the  witness  only  tended  to  show  gross 
carelessness  on  the  part  of  the  driver  of  the  ice  cart,  and  that 
was  the  most,  that  the  witness  intended  by  the  answer  to  either 
question.  When  the  evidence  is  that  the  wrongful  act  was  not 
within  the  general  scope  of  the  servant 's  employment,  and  so  not 
within  the  express  or  implied  authorization  of  the  master,  it  is 
for  the  court  to  pass  upon  the  competency  of  the  evidence,  and 
for  the  jury  to  give  effect  to  it."  It  thus  appears  that  this  last 
case  dealt  only  with  the  ordinary  situation  of  the  reckless  driv- 
ing of  defendant's  servant. 

It  is  apparent  that  when  the  trial  judge,  in  the  case  before  us, 
having  instructed  the  jury  as  to  the  law  of  compensatory  dam- 
ages, told  them,  in  effect,  that  they  had  also  the  power,  if  they 
thought  proper,  to  add  to  such  sum  as  they  fixed  for  compen- 
sation an  amount  for  punitive  or  vindictive  damages,  the  jury 
were  furnished  no  rule  under  which  these  latter  damages  could 
be  assessed.  They  were  simply  told  that  they  had  the  power 
to  award  them.  We  do  not  wish  to  be  understood  as  expressing 
any  opinion  as  to  the  merits  of  this  case,  or  as  laying  down  a  rule 
as  to  its  particular  facts  that  will  embarrass  the  court  below  on  a 
second  trial.  It  will  be  for  the  jury  to  determine,  upon  the 
facts  submitted  for  their  consideration,  whether  the  driver  was 
acting  within  the  general  scope  of  his  employment  when  he 
caused  the  arrest  of  the  plaintiff,  or  was  proceeding  outside  of 
that  relation,  and  to  accomplish  a  purpose  foreign  to  it.  If  the 
jury  find  against  the  defendant,  they  will  be  at  liberty  to  assess 
such  reasonable  compensatory  damages  as  the  plaintiff  is  entitled 
to  by  reason  of  the  indignity  of  the  arrest,  and  the  humiliation 
incident  thereto.  Punitive  or  vindictive  damages  can  be  added 
to  compensatory  damages  only  when  the  case  is  brought  within 
the  rule  so  clearly  laid  down  in  the  authorities  we  have  discussed. 
This  is  a  question  for  the  jury  to  decide,  if  there  is  evidence  for 
their  consideration,  under  proper  instructions  by  the  trial  judge. 

The  judgment  of  the  appellate  division  should  be  reversed,  and 
a  new  trial  granted,  with  costs  to  abide  the  event. 

Parker.  C.  J.,  and  Gray,  O'Brien,  Haigitt,  Martin,  and 
Yann,  JJ.,  concur.  Judgment  reversed,  etc. 


534  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

In  an  action  for  false  imprisonment,  the  plaintiff  may  recover  such 
damages  as  will  reasonably  compensate  him  for  such  injuries  as  he 
may  have  alleged  and  proved  as  a  result  therefrom,  including  dam- 
ages for  indignity,  ridicule,  and  humiliation.  McCaffrey  v.  Thomas,  4 
Peunewiirs  Delaware  Keports,  437.  A  railroad  company  is  liable  for 
punitive  damages,  when  its  train  conductor  unlawfully  arrests  and 
imprisons  a  person  on  the  train,  when  such  act  is  malicious,  wanton, 
willful,  or  reckless.  Davis  v.  Chesapeake  &  Ohio  Ry.  Co.,  61.,  W.  Va. 
246.  See  also  Linnex  v.  Banfield,  114  Mich.  93;  and  Bernheimer  v. 
Becker,  102  Md.  250 ;  and  Cone  v.  C.  R.  of  N.  J.,  62  N.  J.  L.  99. 


10.    Malicious  Prosecution, 
SAMIELOFF  v.  N.  Y.  &  Q.  C.  RY.  CO. 

New  York,  1907.      107  N.  Y.  Supp.  774.', 

Clarile,  J.  This  is  an  action  to  recover  damages  for  false  ar- 
rest and  malicious  prosecution.  The  plaintiff  testified  that  he 
was  a  passenger  on  a  car  of  the  defendant,  and  was  making  a  trip 
to  the  cemetery  to  visit  his  wife's  grave;  that,  as  the  car  upon 
which  he  was  riding  approached  the  cemetery,  he  saw  a  disturb- 
ance or  fight  around  a  preceding  car  between  the  conductor  and 
the  motorman  of  that  car  and  a  number  of  passengers;  that  he 
took  no  part  in  the  fracas,  but  protested  to  the  motorman  upon 
his  car,  and  was  told  to  "shut  up,"  with  an  opprobious  epithet, 
"or  he  would  get  his  face  punched  in ; "  that  on  the  way  back 
to  the  terminus  at  the  Thirty-Fourth  Street  ferry  he  again  pro- 
tested and  received  a  similar  reply ;  that  he  then  told  the  motor- 
man,  "You  so  fresh  to  me,  when  the  car  stops  in  Thirty-Fourth 
street,  near  to  the  office  to  the  ferry,  then  I  be  a  witness.  I  go 
into  the  office,  and  I  tell  everything  I  saw  what  you  do  with  these 
people;"  that,  when  he  got  off  the  car  at  the  ferry,  he  was  ar- 
rested upon  the  complaint  of  the  conductor  of  the  car  around 
which  the  fight  had  raged,  whose  head  was  cut  and  bleeding ;  that 
he  was  locked  up  overnight,  held  for  the  grand  jury,  was  indicted, 
tried  b}'  a  petit  jury,  and  acquitted.  The  charge  in  that  proceed- 
ing was  that  he  had  assaulted  the  conductor  of  the  prior  ear 
with  a  stone.  He  produced  no  witnesses  in  regard  to  the  occur- 
rence at  the  cemetery.  The  conductor  upon  whose  complaint  the 
plaintiff  was  arrested  is  dead,  but  the  company  produced  tvro 
employes  and  four  apparently  disinterested  witnesses  who  were 


MALICIOUS  PROSECUTION.  535 

passengers,  the  substance  of  whose  testimony  was  that  the  plain- 
tiff took  part  in  the  fight,  threw  a  stone  at  the  conductor,  and  was 
about  to  throw  another  when  he  was  stopped  by  the  conductor 
of  his  o^^•n  car,  and  that  he  had  a  wrestle  and  struggle  with  that 
conductor  and  tore  his  coat.  The  jurj^  found  a  verdict  for  the 
plaintiff,  and  assessed  the  damages  at  $2,000. 

In  charging  the  jury  the  learned  court  said: 

"Because  of  what  plaintiff's  counsel  urged  on  the  question  of 
exemplary  or  punitive  damages,  I  charge  you  that  unless  the  evi- 
dence satisfies  you  and  persuades  you,  and  not  upon  speculation 
or  conjecture,  that  the  defendant  company  had  knowledge  of  any 
malicious  act  of  the  conductor,  in  the  event  that  you  should  find 
that  the  conductor  personally  acted  maliciously  and  with  know- 
ledge of  the  defendant  company,  even  then  there  can  be  no  re- 
covery by  way  of  exemplary  damages  or  punitive  damages  against 
the  defendant  company,  because  of  the  individual  malice  of  the 
conductor,  even  though  you  find  that  the  act  was  within  the  con- 
ductor's  duty.  The  law  only  charges  and  makes  a  master  re- 
sponsible for  the  individual  malicious  act  of  a  servant  when  the 
master  actually  authorized  it,  had  knowledge  of  it,  or  affirma- 
tively ratified  it.  All  of  these  elements  must  be  proven  to  your 
satisfaction  by  evidence,  and  not  by  speculation  or  conjecture, 
namely,  that  the  defendant  company  authorized  the  individual 
malicious  act,  that  the  defendant  company  had  knowledge  of  it, 
and,  having  knowledge  of  a  malicious  act  of  the  conductor,  that 
it  expressly  ratified  it." 

Defendant  excepted  to  the  charge  of  the  court,  leaving  to  the 
jury  all  the  question  of  exemplary  damages.  The  respondent 
admits  that  the  question  of  exemplary  damages  should  not  have 
been  left  to  the  jury.    He  says  in  his  brief : 

''This  exception  is  without  merit,  because  as  matter  of  fact 
the  court  did  not  leave  to  the  jury  any  question  of  exemplary 
damages.  The  court  simply  stated  an  abstract  question  of  law 
favorable  to  the  defendant,  and  a  general  exception  to  the  charge 
is  without  purpose." 

But  from  what  the  court  said  it  is  quite  evident  that  plain-, 
tiff's  counsel  had  very  earnestly  presented  the  question  of  exem- 
plary damages  and  claimed  to  recover  therefor  in  summing  up 
the  case  to  the  jury ;  and  it  is  quite  evident  from  the  exception 
and  the  court's  reply  to  the  exception  that  it  was  leaving  to  the 
jury  the  question  of  exemplary  damages.     There  is  no  evidence 


536  DAMAGES  IN   ACTIONS  I'OK  WRONGS. 

in  the  ease,  if  the  rules  laid  down  by  the  trial  court  are  correct, 
to  sustain  tlie  finding  of  malice  on  the  part  of  the  company  such 
as  to  charge  them  with  exemplary  damages. 

In  Craven  v.  Bloomingdale,  171  N.  Y.,  439,  64  N.  E.  169,  it  was 
held  that: 

"A  master  cannot  be  held  liable  for  punitive  or  vindictive 
damages  by  reason  of  wanton,  oppressive,  or  malicious  acts  of  the 
servant,  unless  there  is  proof  to  implicate  him  and  make  him 
particeps  criminis  of  his  servant 's  acts ;  and  in  an  action  brought 
against  a  master  for  an  illegal  arrest  caused  by  his  servant,  it  is 
reversible  error  for  the  trial  court,  after  instructing  the  jury  as 
to  the  law  of  compensatory  damages,  to  instruct  them  that  they 
had  also  the  power,  if  they  thought  proper,  to  award  punitive 
or  vindictive  damages,  in  addition  to  the  amount  fixed  by  them 
for  compensatory  damages,  without  further  instructing  them 
that  such  damages  should  not  be  awarded  unless  there  was  proof 
showing  that  the  acts  of  the  servant  were  wanton,  oppressive, 
or  malicious,  and  that  the  master  was  implicated  with  the  servant 
therein,  or  had  either  expressly  or  impliedly  authorized  or  rat- 
ified them." 

The  learned  court  correctly  charged  the  law,  but,  as  there  was 
no  evidence  upon  which  the  jury  could  have  charged  the  alleged 
malicious  acts  of  the  servant  upon  the  master,  when  the  court's 
attention  was  called  by  the  exception  to  the  fact  that  he  had  left 
to  the  jury  the  question  of  exemplary  damages,  he  should  have 
instructed  them  that  compensatory  damages  were  all  that  they 
could  find.  The  considerable  space  given  in  the  charge  to  the 
discussion  of  this  question  which  was  not  properly  before  the 
jury  had  a  tendency  to  confuse  the  issue,  and  was  harmful  to  the 
defendant. 

The  verdict  is  against  the  weight  of  the  evidence,  and  there- 
fore the  judgment  and  order  should  be  reversed,  and  a  new  trial 
ordered,  with  costs  to  the  appellant  to  abide  the  event.    All  con-v 
cur. 


FRAUD  AND  DECEIT.  537 

11.     Fraud  and  Deceit. 

PEEK  V.  DERRY. 
Supreme  Court  of  Judicature,  1887.     L.  E,.  37  Ch.  Div,  541. 

This  is  an  action  of  deceit. 

Plaintiff  purchased  400  shares  of  stock  in  the  Plymouth, 
Devenport  &  District  Tramways  Company  for  which  he  paid 
£4000.  The  action  is  brought  for  damages  sustained  by  reason 
of  reliance  on  untrue  statements  in  the  prospectus  of  the  com- 
pany made  by  the  defendant  to  the  effect  that  the  company  had 
an  absolute  right  to  use  steam  and  other  mechanical  power  which 
representation  had  induced  the  plaintiff  to  make  the  purchase. 

Cotton,  L.  J.  *  *  *  The  damage  to  be  recovered  by  the 
plaintiff  is  the  loss  which  he  sustained  by  acting  on  the  repre- 
sentations of  the  defendants.  That  action  was  taking  the  shares. 
Before  he  was  induced  to  buy  the  shares,  he  had  the  £4000.  in 
his  pocket.  The  day  when  the  shares  were  allotted  to  him,  which 
was  the  consequence  of  his  action,  he  paid  over  that  £4000.,  and 
he  got  the  shares;  and  the  loss  sustained  by  him  in  consequence 
of  his  acting  on  the  representations  of  the  defendants  was  having 
the  shares,  instead  of  having  in  his  pocket  the  £4000.  The  loss, 
therefore,  must  be  the  difference  between  his  £4000.  and  the  then 
value  of  the  shares.  Now  it  must  not  be  taken  that  the  value  of 
the  shares  must  be  what  they  would  have  sold  for  in  the  market, 
because  that  might  not  show  the  real  value  at  all.     *     *     * 

Sir  James  Hannen.  I  will  add  only  a  few  words.  *  *  * 
The  question  is,  how  much  worse  off  is  the  plaintiff  than  if  he  had 
not  bought  the  shares  ?  If  he  had  not  bought  the  shares  he  would 
have  had  his  £4000.  in  his  pocket.  To  ascertain  his  loss  we  must 
deduct  from  that  amount  the  real  value  of  the  thing  he  got.  That 
must  be  ascertained  by  the  light  of  the  events  which  have  hap- 
pened down  to  the  time  of  the  inquiry— not  what  the  shares 
might  have  been  sold  for,  because  he  was  not  bound  to  sell  them, 
and  subsequent  events  may  show  that  what  the  shares  might  have 
been  sold  for  was  not  their  true  value,  but  a  mistaken  estimate  of 
their  value. 

Lopes,  L.  J.  The  question  in  this  case  is  what  is  the  loss  which 
the  plaintiff  has  sustained  by  acting  on  the  mere  representation 
of  the  defendants,  and  what  is  the  true  measure  of  his  damage? 
In  my  opinion,  it  is  the  difference  between  the  £4000.  he  paid 


538  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

mid  the  real  value  oC  the  shares  after  they  were  allotted.  Any 
damage  occurring  alter  the  discovery  of  the  fraud,  when  the 
plaintiff  might  have  rescinded  the  contract,  and  which  would  not 
be  attributable  to  his  acting  on  the  misrepresentation,  but  to 
other  causes,  in  my  opinion  would  not  be  recoverable. 


GUSTAFSON  v.  RUSTEMEYER. 

Connecticut,  1898.     70  Conn.  125. 

Action  to  recover  damages  for  fraud  in  the  exchange  of  real 
property.    Judgment  for  plaintiff.    Defendant  appeals. 

Torrance,  J.  The  first  question  to  be  considered  is  whether 
the  court  erred  in  sustaining  the  demurrer  to  the  counterclaim. 
The  false  representation  therein  set  out  and  relied  upon  relates 
simply  to  the  worth  of  the  Julius  street  property  over  and  above 
the  incumbrances.  It  is  a  mere  naked  representation  of  the  value 
of  an  equity  of  redemption,  and  nothing  more.  The  general  rule 
is  that  a  mere  naked  assertion  of  the  value  without  more,  made 
between  vendor  and  vendee  during  negotiations  for  a  sale,  though 
untrue,  and  known  to  be  so  by  the  one  who  makes  it,  and  relied 
upon  by  the  other,  to  his  hurt,  does  not  constitute  an  actionable 
deceit;  and  this  for  the  reason  that  such  an  assertion,  in  most 
cases,  is,  and  is  understood  to  be,  the  statement  of  an  opinion,  and 
not  of  a  fact,  and  the  party  to  whom  it  is  made  has  no  right  to 
rely  upon  it,  and,  if  he  does  so,  his  loss,  if  any  occurs,  is  held  to 
be  the  result  of  his  ovm  folly.  1  Big.  Fraud,  p.  490 ;  Parker  v. 
Moulton,  114  Mass.  99 ;  Morse  v.  Shaw,  124  Mass.  59 ;  Homer  v. 
Perkins,  Id.  431 ;  Ellis  v.  Andrews,  56  N.  Y.  83 ;  Chrysler  v. 
Canaday,  90  N.  Y.  272 ;  Shanks  v.  Whitney,  66  Vt.  405.  See,  also, 
eases  cited  in  note  to  Cottrill  v.  Krum,  in  18  Am.  St.  Rep.  556 
(s.  c.  100  Mo.  397).  There  are,  undoubtedly,  exceptions  to  this 
general  rule,  arising  out  of  the  special  circumstances  under 
which  the  representation  as  to  mere  value  is  made, — as,  for  in- 
stance, where  the  one  who  makes  the  representation  holds  a  posi- 
tion of  trust  or  confidence  towards  the  other,  which  gives  the  lat- 
ter a  right  to  rely  on  the  representation,  or  where  the  seller  has, 
or  assumes  to  have,  special  knowledge  of  the  value  of  the  prop- 
erty, and  the  buyer  has  no  knowledge  thereof,  and  the  latter,  to 
the  seller's  knowledge,  trusts  entirely  to  the  seller's  representa- 
tion.    In  such  cases  the  seller  may  justly  be  held  liable  for  his 


FRAUD  AND  DECEIT.  539 

false  representations,  because  by  them  the  buyer  is  fraudulently 
induced  to  forbear  inquiry  as  to  their  truth.  A  mere  false  repre- 
sentation as  to  the  value  of  real  estate,  knowingly  made  by  the 
seller  to  the  buyer,  is  not  actionable,  unless  the  buyer  has  been 
fraudulently  induced  to  forbear  inquiry  as  to  its  truth ;  and  in 
that  case  the  means  by  which  he  was  thus  induced  to  forbear 
inquiry  must  be  specifically  set  forth  in  the  pleading.  "To  such 
:  representations  the  maxim  caveat  emptor  applies.  The  buyer  is 
not  excused  from  an  examination  unless  he  be  fraudulently  in- 
duced to  forbear  inquiries  which  he  would  otherwise  have  made. 
If  fraud  of  this  latter  description  is  relied  on  as  an  additional 
ground  of  action,  it  must  be  specifically  set  forth  in  the  dec- 
laration, and  cannot  be  charged  in  general  terms  only. ' '  Parker 
V.  Moulton,  114  ^lass.  99,  100 ;  Ellis  v.  Andrews,  supra;  Chrys- 
ler V.  Canaday,  supra.  Upon  the  counterclaim,  as  it  stands,  the 
defendant's  case  falls  within  the  general  rule,  and  not  within  any 
of  the  recognized  exceptions.  If  he  desired  to  bring  it  within  any 
of  these  exceptions,  he  should  have  alleged  the  specific  facts 
which  would  bring  it  within  one  of  them ;  but  this  he  did  not  do, 
and  for  this  reason  the  demurrer  was  properly  sustained. 

In  his  brief  the  defendant  claims,  in  substance,  that  the  gen- 
eral principles  here  applied  to  the  statement  of  facts  in  the  coun- 
terclaim, if  applied  to  the  facts  found,  show  that  the  plaintiffs 
have  no  cause  of  action.  He  says,  "Misrepresentations  of  the 
dimensions  of  the  farm  in  question  by  the  defendant  to  the  plain- 
tiff, even  though  intentional,  cannot  lay  a  foundation  for  an  ac- 
tion, upon  the  facts  found  by  the  court."  If  the  defendant  were 
at  liberty  to  make  this  claim  here,  it  might  be  shown  in  reply  that 
the  facts  set  up  in  the  counterclaim,  and  the  facts  found,  differ 
very  materially,  and  that  this  difference  may  be  just  the  dif- 
ference between  a  false  representation  that  is  actionable  and  one 
that  is  not;  but  the  defendant,  under  the  statute,  (Gen.  St. 
§1135),  is  not  at  liberty  to  make  this  claim  here,  because  he 
did  not  make  any  claim  of  this  kind  in  the  court  below,  nor  has 
he  made  it  in  his  assignments  of  error.  Under  the  circumstances 
of  this  case,  we  decline  to  consider  this  claim. 

The  defendant  claims  that  the  court  excluded  the  evidence  of 
the  value  of  the  Julius  street  property  as  compared  with  the 
value  of  the  farm,  and  that  it  erred  in  so  doing.  Although  there 
is  some  doubt  as  to  whether  the  court  did  absolutely  and  finally 
rule  this  evidence  out,  we  will  consider  the  case  as  if  it  had  so 


540  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

ruled.  The  defendant  claimed  that  the  measure  of  damages  was 
the  difference  hetweeu  the  value  of  the  farm  and  the  value  of  the 
property  given  in  exchange  for  it,  while  the  plaintiffs  claimed 
that  it  was  the  dift'erence  between  the  value  of  the  property  which 
the  defendant  owned  and  conveyed  and  its  value  if  it  had  been 
as  represented.  From  the  record,  it  is  clear  that  this  evidence 
was  offered  solely  as  bearing  upon  the  question  of  damages,  and 
on  the  assumption  that  the  rule  as  to  the  measure  of  damages 
was  as  claimed  by  the  defendant.  In  his  brief  the  defendant  now 
claims  that  the  evidence  was  admissible  for  another  purpose 
namely,  as  "tending  to  show  the  improbability  of  his  having 
made  the  representations  complained  of."  The  evidence  was  un- 
doubtedly admissible  for  tliis  purpose,  and  for  other  purposes, 
as,  for  instance,  as  evidence — but  not  conclusive — to  show,  from 
the  price  paid,  the  value  of  the  farm  conveyed  to  the  plaintiffs. 
Big.  Frauds,  pp.  627,  628 ;  3  Suth.  Dam.  p.  592.  But  the  trouble 
with  this  claim  is  that  it  was  not  made  in  the  court  below,  and 
cannot  be  considered  now.  The  question,  then,  whether  the  court 
erred  in  excluding  this  evidence,  depends  on  the  further  question, 
what  is  the  proper  measure  of  damages  in  cases  of  this  kind? 
A  vendee,  induced  to  purchase  land  by  false  and  fraudulent  rep- 
resentations, may.  acting  seasonably,  rescind  the  contract,  and, 
after  giving  or  offering  to  give  back  what  he  received,  may  re- 
cover back  the  consideration,  or  he  may  retain  the  land,  and  re- 
cover damages  for  the  deceit  in  a  proper  action.  Ives  v.  Carter, 
24  Conn.  392 ;  Krumm  v.  Beach,  96  N.  Y.  398 ;  Vail  v.  Reynolds, 
118  N.  Y.  297 ;  Pryor  v.  Foster,  130  N.  Y.  171.  The  present  case 
is  one  where  the  plaintiffs  have  elected  to  keep  the  land,  and  seek 
to  recover  for  the  deceit  in  an  action  of  tort ;  and  the  question  is, 
what  is  the  measure  of  damages  in  this  action?  Upon  this 
question  the  decisions  of  the  courts  of  last  resort  are  not  in  har- 
mony. In  one  class  of  cases  the  measure  of  damages  is  held  to  be 
the  difference  between  the  actual  value  of  the  property  at  the 
time  of  the  purchase  and  its  value  if  the  property  had  been  what 
it  was  represented  or  warranted  to  be,  while  in  the  other  class  of 
cases  it  is  held  to  be  the  difference  between  the  real  value  of  the 
property  retained  by  the  plaintiff,  as  it  was  at  the  time  of  the 
purchase,  and  the  value  of  that  which  he  gave  for  it.  In  the 
former  class  of  eases  the  plaintiff  is  allowed  the  benefit  of  his 
bargain ;  in  the  latter,  he  is  not.  Morse  v.  Hutehins,  102  Mass. 
439,  is  an  example  of  the  first  class  of  cases,  while  Smith  v.  Bolles, 


FRAUD  AND  DECEIT.  541 

132  U.  S.  125,  is  an  example  of  the  other  class.  In  Morse  v. 
Hutchins  the  court  say :  "  It  is  now  well  settled  that,  in  actions 
for  deceit  or  breach  of  warranty,  the  measure  of  damages  is  the 
difference  between  the  actual  value  of  the  property  at  the  time 
of  the  purchase  and  its  value  if  the  property  had  been  what  it 
was  represented  or  warranted  to  be.  *  *  *  This  is  the  only 
rule  which  will  give  the  purchaser  adequate  damages  for  not  hav- 
ing the  thing  which  the  defendant  undertook  to  sell  him.  To 
allow  to  the  plaintiff  *  *  *  only  the  difference  between  the 
real  value  of  the  property  and  the  price  which  he  was  induced 
to  pay  for  it  would  be  to  make  any  advantage  lawfully  secured  to 
the  innocent  purchaser  in  the  original  bargain  inure  to  the  bene- 
fit of  the  wrongdoer,  and,  in  proportion  as  the  original  price  was 
low,  would  afford  a  protection  to  the  party  who  had  broken,  at 
the  expense  of  the  party  who  was  ready  to  abide  bj^  the  terms  of 
the  contract."  In  Smith  v.  BoUes,  on  the  other  hand,  it  was  said: 
' '  The  measure  of  damages  was  not  the  difference  between  the  con- 
tract price  and  the  reasonable  market  value  if  the  property  had 
been  as  represented  to  be,  even  if  the  stock  had  been  worth  the 
price  paid  for  it ;  nor,  if  the  stock  were  worthless,  could  the  plain- 
tiff have  recovered  the  value  it  would  have  had  if  the  property 
had  been  equal  to  the  representations.  What  the  plaintiff  might 
have  gained  is  not  the  question,  but  what  he  had  lost  by  being 
deceived  into  the  purchase.  The  suit  was  not  brought  for  breach 
of  contract.  The  gist  of  the  action  was  that  the  plaintiff"  was 
fraudulently  induced  by  the  defendant  to  purchase  stock  upon 
the  faith  of  certain  false  and  fraudulent  representations. 
*  *  *  The  defendant  was  liable  to  respond  in  such  dam- 
ages as  naturally  and  proximately  resulted  from  the  fraud.  He 
was  bound  to  make  good  the  loss  sustained,  such  as  the  moneys 
the  plaintiff  had  paid  nut,  and  interest,  and  any  other  outlay  legit- 
imately attributable  to  defendant's  fraudulent  conduct;  but  this 
liability  did  not  include  the  expected  fruits  of  an  unrealized 
speculation."  Both  of  these  cases  relate  to  sales  of  personal 
property,  but  no  distinction  is  made,  in  the  application  of  these 
rules,  between  sales  of  personal  and  sales  of  real  property.  Big. 
Frauds,  p.  627 ;  Sedg.  Dam.  (2d  Ed.)  p.  559  ;  3  Suth.  Dam.  §  1171. 
And  no  good  reason  has  yet  been  given  why  there  should  be  any 
such  distinction.  Both  courts,  in  the  eases  above  mentioned, 
recognize  the  existence  of  the  general  rule  that  the  defendant 
is  only  liable  for  such  damages  as  are  the  natural  and  proxi- 


542  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

mate  result  of  his  fraud,  but  they  differ  in  appl.ying  it.  In 
]\Iorsc  V.  liutchius  the  loss  of  the  beuelits  of  his  bargain  is  re- 
garded as  one  of  the  elements  of  plaintiff's  damages,  resulting 
naturnlly  and  proximately  from  the  fraud,  while  in  Smith  v. 
Bolles  such  loss  is  not  so  regarded.  The  general  rule  in  regard  to 
the  measure  of  damages  in  actions  of  deception  has  been  stated, 
ami  we  think  correctly,  as  follows:  "The  defendant  is  liable, 
not  for  everything  that  follows  upon  his  fraud,  but  for  what 
maj^  be  presumed  to  have  been  within  his  contemplation  at  the 
time,  as  a  man  of  average  intelligence."  Big.  Frauds,  p.  625. 
Applying  the  general  rule  as  thus  stated  to  a  case  like  the  present, 
we  think  the  loss  of  the  benefits  of  the  bargain  is  one  of  the 
elements  of  damages  which  the  defendant  must  be  held  to  have 
contemplated  as  the  natural  and  proximate  result  of  his  conduct, 
and  for  which  he  is  therefore  answerable.  In  Big.  Frauds,  p.  627, 
the  rule  is  stated  as  follows:  "It  is  now  well  settled  that,  in 
actions  for  deceit  or  breach  of  warranty  in  sales  of  personalty 
or  realty,  the  measure  of  damages  is  the  difference  between  the 
actual  value  of  the  property  at  the  time  of  the  purchase  and  its 
value  if  the  property  had  been  what  it  was  represented  or  war- 
ranted to  be,"  citing  numerous  cases.  This  is  the  rule,  also,  as 
stated,  and  favored  in  3  Suth.  Dam.  pp.  589,  592.  It  is  the  rule 
adopted  and  followed  in  numerous  cases  relating  to  the  sale  o^ 
personal  property,  and  it  is  the  rule  adopted  and  followed  in 
the  following  cases  relating  to  the  sale  of  real  estate :  Krumm  v. 
Beach,  supra;  Vail  v.  Reynolds,  supra,  in  New  York;  Drew  v 
Beall,  62  111.  164,  168;  Nysewander  v.  Lowman,  124  Ind.  584; 
Page  v.  Parker,  43  N.  H.  363 ;  Shanks  v.  Whitney,  66  Vt.  405 ; 
Williams  v.  McFadden,  23  Fla.  143.  Moreover,  it  is  the  rule 
adopted  and  followed  by  this  court  in  Murray  v.  Jennings,  42 
Conn.  9.  In  that  case  it  does  not  appear  to  have  been  much 
discussed,  but  its  application  was  directly  in  question, — was,  in- 
deed, the  only  question  in  the  case, — and  it  was  specifically  and 
deliberately  adopted  and  followed.  We  see  no  good  reason  why 
it  should  not  be  considered  as  the  settled  rule  in  this  state.  The 
evidence  of  the  value  of  the  Julius  street  property,  then,  hav- 
ing been  ofi'ercd  solely  for  the  purpose  of  showing  the  amount 
of  the  plaintiff's  damages,  under  the  rule  laid  down  in  Smith  v. 
Bolles.  was  inadmissible,  and  the  court  committed  no  error  in 
excluding  it  for  that  purpose. 


FRAUD  AND  DECEIT.  543 

The  court  below  did  not  err  in  admitting  the  evidence  in  ques- 
tion.    *     *     * 

In  his  last  assignment  of  error,  the  defendant  claims,  in  effect, 
that  the  court  failed  to  adopt  and  apply  any  fixed  rule  as  to  the 
measure  of  damages,  and  did  not  assess  them  "in  accordance 
with  the  rules  of  exact  justice."  The  record  shows  that  the  par- 
ties upon  the  trial  made  specific,  conflicting  claims  with  respect 
to  the  rule  of  damages ;  and  they  were  entitled  to  have  the  true 
rule  applied,  and  to  know  which  of  the  conflicting  rules  was  ap- 
plied by  the  court.  It  was  the  duty  of  the  court  to  adopt  and 
apply  the  rule  which  the  plaintiffs  contended  for,  and  it  was  also 
its  duty  to  make  this  known  to  the  parties  in  some  way.  The 
record  upon  this  point  is  not  as  clear  as  it  should  be.  It  says : 
"Adopting  either  rule,  I  find  from  the  evidence  as  to  the  value 
of  the  several  properties  that  the  result  would  be  approximately 
the  same."  The  fact  implied  in  this  statement,  that  the  court 
had  heard  and  considered  evidence  as  to  the  value  of  both  prop- 
erties, would  seem  to  indicate  the  adoption  of  the  rule  which  the 
defendant  contended  for,  while  there  are  other  things  elsewhere 
in  the  record  which  seem  to  indicate  that  the  court  adopted  the 
other  rule.  The  record  does  not  show,  either  expressly  or  by 
clear  implication,  which  of  the  conflicting  rules  the  court 
adopted  and  applied.  Perhaps  the  fair  import  of  the  record  is 
that  in  the  process  of  assessing  the  damages  the  court  applied 
both  rules,  and,  finding  the  results  approximately  the  same,  did 
not  decide  which  of  them  was  the  true  rule,  and  exclusively  ap- 
plicable. It  was  the  duty  of  the  court  to  decide  this  question, 
however,  and  to  make  its  decision  manifest  in  some  way  to  the 
parties,  and  this  was  not  done.  We  think  the  court  erred  in  this 
but  if,  as  is  found,  the  application  of  either  rule  leads  in  this 
case  to  substantially  the  same  result,  it  is  difficult  to  see  how  the 
defendant  has  been  harmed  by  the  error,  and  for  this  reason  we 
do  not  advise  a  new  trial  on  account  of  it.  There  is  no  error. 
The  other  judges  concurred,  except  Hamersley,  J.,  who  dis- 
sented. 


BROWN  V.  MORRILL. 

New  York,   1907.     55   Misc.   224. 

Platzek,  J.    This  is  nn  appeal  by  the  defendant  from  a  judg- 
ment of  the  City  Court  in  ^'avor  of  plaintiff  for  $573.70.     The 


544  DAMAGES  IN  ACTIONS  FOU  WRONGS. 

respondent's  counsel  in  his  points  states:  "The  plaintiff's  ac- 
tion is  for  deceit,  lie  claiins  that  he  was  induced  by  false  repre- 
sentations to  execute  a  lease  to  defendant's  premises,  to  move  in 
at  a  cost  and  expense  and  pay  a  month's  rent,"  and  specifying 
these  items  and  the  loss  of  the  use  and  profits  of  his  plant  as  his 
resulting  damages.  "The  trial  below  was  had  on  that  issue  and 
on  that  theory  alone."  Tlie  defendant  interposed  a  general  de- 
nial and  asserted  a  counterclaim  for  past  due  rent.  The  appel- 
lant's theory  is  that  the  rights  and  obligations  of  the  parties 
were  measured  and  controlled  by  the  written  lease,  and  objected 
to  the  adnussion  of  testimony,  and  conducted  the  defense  on  the 
assumption  that  the  lease  entirely  controlled  and  that  evidence 
was  admitted  and  given  to  vary  and  contradict  the  written  in- 
strument. The  defendant's  counsel  is  wrong  in  his  view  of  the 
law,  for  the  reason  that  the  plaintiff  is  not  suing  for  a  breach  of 
the  covenant  of  the  lease,  but  is  seeking  to  recover  damages  for 
deceit  in  being  fraudulently  induced  to  sign  the  lease,  relying 
upon  the  representations  of  the  defendant.  It  is  elemental  that, 
in  an  action  for  deceit  and  false  representations,  the  necessary 
allegations  are:  First.  The  fraudulent  representation  relied 
upon  to  sustain  the  cause  of  action.  Second.  The  falsity  of  the 
representation.  Third.  The  scienter.  Fourth.  The  intent  to 
deceive.  Fifth.  Proper  damages.  The  only  one  of  these  ele- 
ments found  in  the  complaint  is  the  representation ;  and  that  is 
not  stated  to  be  fraudulent,  the  alleged  representation  in  this 
case  being:  "]\lr.  Lovejoy,  the  agent,  showed  me  the  electric 
service  in  the  building,  and  said  to  me  that  all  I  needed  is  to  go 
on  and  start  to  do  work."  "It  was  said,  the  electric  service  was 
right  in  the  building,  and  I  could  have  it  if  I  want  to."  Lovejoy 
testified:  "I  told  him  that  it  was  up  to  him  to  make  arrange- 
ments to  have  his  electricians  come  there.  That  was  while  I  was 
in  the  building  showing  him  the  place."  Plaintiff  moved  in  and 
claims  to  have  procured  motor  and  wiring,  but  a  tenant  who  had 
the  basement  refused  to  allow  any  connection  to  be  made.  It 
must  always  be  remembered  that  no  such  condition  or  promise 
or  suggestion  is  contained  in  the  lease  executed  between  the  par- 
ties, which  is  in  evidence  and  part  of  the  record.  It  is  nowhere 
alleged  in  the  complaint  that  any  representation  was  false  and 
made  with  the  intent  to  deceive,  or  that  the  defendant  had 
knowledge  of  the  falsity  and  induced  the  plaintiff  to  rely  on  the 
representation,  knowing  it  to  be  false.     In  an  action  for  deceit. 


FRAUD  AND  DECEIT.  545 

no  recovery  can  be  had  on  proof  of  the  mere  breach  of  a  con- 
tract, unless  all  the  necessary  allegations  to  sustain  a  recovery 
for  fraud  and  deceit  are  alleged,  and  then  the  breach  of  the  con- 
tract may  be  averred  by  way  of  inducement  only  and  not  for  any 
other  purpose.  Search  will  be  made  in  vain  in  the  complaint  for 
any  allegations  and  in  the  evidence  in  the  case  for  any  testimony 
to  sustain  an  action  for  deceit  and  fraudulent  representations 
relating  to  the  lease  in  question.  The  plaintiff  offered  evidence 
of  lost  profits  as  an  element  of  damages.  Objection  was  made 
and  overruled  and  duly  excepted  to.  It  was,  in  my  judgment, 
reversible  error  to  admit  proof  of  lost  profits  in  this  case.  The 
true  rule  of  damages  in  this  case  is  analogous  to  that  of  an 
evicted  tenant,  and  is  the  difference  between  the  value  of  the 
lease  for  the  unexpired  term  and  the  stipulated  rent,  as  well  as 
the  cost  of  moving  into  and  out  of  the  premises.  An  evicted 
tenant  cannot  recover  prospective  or  lost  profits.  The  measure 
of  damages  is,  whether  the  action  be  on  contract  or  in  tort,  the 
same,  viz.,  the  difference  between  the  rent  reserved  and  the  value 
of  the  premises  for  the  term,  and  the  cost  of  moving  in  and  out. 
Trull  V.  Granger,  8  X.  Y.  115.  This  case  w^as  cited  with  approval 
in  Eastman  v.  ]\Iayor,  152  N.  Y.  473.  See  also  Oehlhof  v.  Solo- 
mon, 73  App.  Div.  329,  on  rule  as  to  damages  generally,  in  ac- 
tions for  deceit  and  fraudulent  representation.  This  judgment 
should  be  reversed.  First.  Because  the  allegations  of  the  com- 
plaint are  insufficient  and  do  not  set  out  a  cause  of  action  for 
deceit  and  fraudulent  representations.  Second.  Because  the  evi- 
dence in  the  case  is  wholly  insufficient  to  sustain  a  cause  of  action 
for  deceit  and  false  representations  in  the  making  of  the  said 
lease.  Third.  Because  of  error  in  admitting  evidence,  against 
objection,  covering  items  for  lost  profits  in  the  business  of  the 
plaintiff,  amounting  to  $300.  Fourth.  Because  the  judge  in  his 
charge  to  the  jury  submitted  to  them  as  an  element  of  damages : 
"That  he  also  lost  certain  profits  in  his  business,  which  he  has 
detailed  to  you,  amounting  to  about  $300,  which,  added  to  the 
$315,  makes  $615,  which  is  the  amount  he  seeks  to  recover  at  your 
hands,"  to  which  the  defendant's  counsel  duly  excepted. 

GiLDERSLEEVE  and  Seabury,  JJ.,  concur. 

Judgment  reversed  and  new  trial  ordered,  with  costs  to  ap- 
pellant to  abide  event. 

Where  mining  stock,  represented  as  treasury  stock,  is  sold  under 
false    representations,    and    is   in    reality   private    stock,    the   damages 


546  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

resulting  may  be  wholly  spooulativo  and  recovery  may  be  precluded. 
Fludlater  v.  Dorland,  152  Mich.  301. 

lu  an  action  of  deceit  for  fraudulent  sale  of  a  gold  mine,  the  ques- 
tion is  what  the  plaintiff  has  lost  by  beinj;  deceived  into  the  purchase. 
The  reasonable  market  value,  if  the  property  had  been  as  represented, 
affords  no  proper  test  of  recovery.     Sigafus  v.  Porter,  179  U.  S.  116. 

Plaintiff,  in  a  legal  sense,  is  not  damaged  by  a  false  representation 
by  which  he  is  not  influenced.    Taylor  v.  Guest,  58  N.  Y.  262. 


12.     Seduction. 


HEWITT  V.  PRIME. 
New  York,  1839.    21  Wend.  79. 

This  was  an  action  on  the  case  for  the  seduction  of  the  seven- 
teen-year-old daughter  of  the  plaintiff,  while  she  was,  as  yet,  a 
member  of  her  father's  family.  The  girl  testified  on  her  chief 
examination  that  she  had  been  induced  by  the  defendant  to  swear 
the  child  upon  some  other  person  than  himself,  in  consideration 
for  his  promising  to  marry  her.  Therefore  she  made  oath  before 
the  justice  that  B.  F.,  a  fictitious  person,  was  father  of  the  child. 

The  plaintiff  also  brought  forward  the  testimony  of  a  practicing 
physician  that  the  defendant  had  applied  to  the  physician  for 
drugs  to  secure  an  abortion,  and  upon  one  occasion,  said  that 
the  female  gotten  with  child  was  the  plaintiff's  daughter.  The 
judge  charged  the  jury  that  the  daughter  being  a  minor,  a  mem- 
ber of  her  father's  family  and  under  his  control  when  seduced, 
no  loss,  expense,  or  damage,  prior  to  the  commencement  of  the 
action  need  be  shoAvn,  it  being  sufficient  to  prove  the  seduction. 
The  jury  found  for  the  plaintiff  and  the  defendant  demands  a 
new  trial. 

By  the  Court,  Nelson,  Ch.  J.  The  witness,  (the  physician), 
I  think,  was  not  privileged.  It  is  very  doubtful  whether  the 
communication  made  to  him  by  the  defendant  can  be  considered 
as  consulting  him  professionally,  within  the  meaning  of  the 
statute;  and  it  is  certain,  that  the  information  given  was  not 
essential  to  enable  him  to  prescribe  for  the  patient,  if  the  daughter 
of  the  plaintiff  should  be  considered  a  patient  in  respect  to  the 
transaction.    2  R.  S.  406,  §  73. 

The  judge  ruled  in  the  course  of  the  trial  that  no  actual  loss 
of  service,  expense  or  damage,  prior  to  the  commencement  of  the 


SEDUCTION.  547 

suit,  need  be  shown;  that  the  proof  of  the  seduction  was  suffi- 
cient under  the  circumstances,  pregnancy  having  ensued,  and 
the  daughter  being  a  minor  and  a  part  of  her  father's  family  at 
the  time.  It  is  now  fully  settled  both  in  England  and  here. 
Maunder  v.  Venn,  1  Mood.  &  Malk.  323,  Peake's  N.  P.  55,  233, 
2  Stark.  Ev.  721,  9  Johns.  R.  387,  2  Wendell,  459,  7  Carr.  & 
PajTie.  528,  that  acts  of  service  by  the  daughter  are  not  neces- 
sary; it  is  enough  if  the  parent  has  a  right  to  command  them, 
to  sustain  the  action.  If  it  were  otherwise,  says  Littledale,  J., 
in  Maunder  v.  Venn,  no  action  could  be  maintained  for  this  in- 
jury in  the  higher  ranks  of  life,  where  no  actual  services  by  the 
daughter  are  usual.  After  this,  I  do  not  perceive  how  we  can 
consistently  maintain,  that  proof  of  actual  loss  of  service  is  in- 
dispensable to  uphold  the  action.  If  it  may  be  sustained  upon 
the  mere  right  to  claim  them,  or  in  the  language  of  the  eases, 
upon  the  supposed  services,  where  none  were  ever  rendered  in 
fact,  the  ground  of  it,  in  the  supposed  case,  precludes  the  pos- 
sibility of  any  actual  loss.  Such  is  the  spirit  of  the  more  re- 
cent cases,  as  will  be  seen  by  a  reference  to  those  above  cited. 
It  was  conceded  by  Hulloek,  sergeant,  for  the  defendant  in 
Revill  v.  Salterfit,  1  Holt,  450,  that  in  most  of  these  cases,  the 
condition  of  service  was  regarded  as  a  mere  conveyance  to  the 
action.  It  was  the  form,  he  said,  through  which  the  injury  was 
presented  to  the  court ;  and  having  obtained  its  admission,  upon 
legal  principles,  it  brought  along  with  it  all  the  circumstances 
of  the  case. 

The  ground  of  the  action  has  often  been  considered  technical, 
and  the  loss  of  service  spoken  of  as  a  fiction,  even  before  the 
courts  ventured  to  place  the  action  upon  the  mere  right  to  claim 
the  services;  they  frequently  admitted  the  most  trifling  and 
valueless  acts  as  sufficient.  In  the  case  of  Clark  v.  Fitch,  2 
Wendell,  459,  there  was  no  proof  of  actual  loss.  And  Martin  v. 
Payne,  9  Johns.  R.  387,  was  decided  upon  the  ground  that  none 
were  necessary.  The  only  actual  liability  of  the  father  that  ap- 
peared in  the  former  case,  were  for  the  expenses  of  the  lying 
in,  which  have  never  been  regarded  as  the  foundation  of  the  suit ; 
they  are  received  in  evidence  only  by  way  of  enhancing  the 
damages.  It  is  apparent  from  a  perusal  of  the  modern  cases, 
and  elementary  writers  in  England,  upon  this  subject,  that  the 
old  idea  of  loss  of  menial  services,  which  lay  at  the  foundation 
of  the  action,  has  gradually  given  way  to  more  enlightened  and 


548  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

refined  views  of  the  domestic  relations :  these  are,  that  the  ser- 
vices of  the  eliikl  are  not  ah)ne  regarded  as  of  value  to  the 
parent.  As  one  of  the  fruits  of  more  cultivated  times,  the  value 
of  the  society  and  attentions  of  a  virtuous  and  innocent  daughter, 
is  properly  appreciated;  and  the  loss  sustained  by  the  parent 
from  the  corruption  of  her  mind  and  the  defilement  of  her  person, 
by  the  guilty  seducer,  is  considered  ground  for  damages,  con- 
sistent even  with  the  first  principles  of  the  action.  The  loss 
of  these  qualities,  even  in  regard  to  menial  services,  would  neces- 
sarily greatly  diminish  their  value. 

The  action  then,  being  fully  sustained,  in  my  judgment,  by 
proof  of  the  act  of  seduction  in  the  particular  case,  all  the  com- 
plicated circumstances  that  followed  come  in  by  way  of  aggre- 
vating  the  damages.  It  is  not  necessary  that  these  should  tran- 
spire before  suit  brought;  if  they  are  the  natural  consequences 
of  the  guilt}'  act,  they  are  but  the  incidents  which  attend,  and 
give  character  to  it. 

Upon  these  views  I  concur  with  the  learned  judge  who  re- 
viewed the  case  below,  in  denying  a  new  trial. 

New  trial  denied. 


MATHIES  V.  MAZET. 

Pennsylvania,  1894.     164  Pa.  580. 

Action  for  seduction  of  plaintiff's  wife.  Judgment  for  plain- 
tiff.   Defendant  appeals. 

Sterrett,  C.  J.  *  *  *  Assuming  the  facts  to  be  substan- 
tially as  claimed  by  plaintiff,  and  as  the  jury  must  have  found 
them,  he  was  clearly  entitled  to  recover  damages,  personal  to 
himself,  resulting  from  the  acts  complained  of, — not  merel.^'  a 
part,  but  the  whole,  of  such  resultant  damages.  Hence,  it  was 
strictly  proper  for  the  learned  judge  to  call  the  jury's  atten- 
tion— as  he  did  in  that  part  of  the  charge  complained  of  in  the 
first  specification — to  the  several  ways  in  which  the  plaintiff 
could,  and  presumably  did,  suffer  personal  damages;  and  it  thus 
became  the  duty  of  the  jury  to  determine  for  themselves,  from 
all  the  evidence,  whether  he  did  thus  suffer  from  defendant's 
wrongful  acts,  and,  if  so,  to  v*'hat  extent. 

What  was  said  in  that  part  of  the  charge  recited  in  the  second 
specification  was  fully  warranted  by  McAlmont  v.  McClelland, 


SEDUCTION.  549 

14  Serg.  &  R.  361,  wherein  Mr.  Justice  Duncan  said:  "This 
inquiry  into  the  condition  of  the  defendant  has  constantly  been 
made,  and  has  always  been  applied  to  those  cases  where  damages 
are  designed,  not  only  as  a  satisfaction  for  the  injury,  but  as 
a  terror  to  others,  and  as  a  proof  of  the  detestation  of  juries.  In 
cases  of  crim.  con.,  actions  for  debauching  a  man's  daughter, 
*  *  *  actions  for  malicious  prosecution,  slander,  and  other 
actions  of  the  same  species,  where  the  damages  are  not  matters 
of  calculation  by  dollars  and  cents,  but  where  each  must  depend 
on  its  own  particular  circumstances  of  aggravation,  and  the  con-* 
dition  in  life  of  the  parties,  courts,  unless  the  damages  are  out- 
rageous, never  set  aside  the  verdict  on  account  of  the  damages, 
but  always  take  into  view  the  situation  of  the  parties  as  to  prop- 
erty, and  this  they  can  only  know  from  the  evidence.  *  *  * 
Damages  are  given  by  way  of  example.  That  which  would  be 
exemplary  as  to  one  would  not  make  another  feel, — would  be  no 
terror  to  him." 

Properly  construed,  and  as  the  jury  doubtless  understood  the 
language  employed,  there  is  no  error  in  that  part  of  the  charge 
quoted  in  the  third  specification.  In  saying  to  the  jury:  '"You 
are  to  look  at  the  wrong  done  to  his  social  and  family  relations. 
You  are  to  consider  the  dishonor  brought  upon  his  family,"  etc., 
— the  learned  judge  referred  solely  to  the  personal  sufferiug.s 
and  losses  of  the  plaintiff,  and  not  to  the  sufferings  and  losses  of 
the  family,  as  contradistinguished  from  those  of  the  plaintiff 
himself.  When  dishonor  was  brought  upon  the  family,  he,  of 
course,  as  its  head,  suffered  thereby  personally.  When  read  in 
connection  with  the  context  and  other  parts  of  the  charge,  the 
meaning  of  the  court  cannot  be  mistaken. 

The  doctrine  of  punitive  or  exemplary  damages,  as  applicable 
to  such  cases  as  this,  is  as  old  as  the  commonwealth  itself,  3izd 
it  will  be  an  evil  day  to  the  cause  of  justice  and  good  morals  if 
the  principle  upon  which  such  damages  have  hitherto  been  sus- 
tained should  be  abandoned.  On  principle  as  well  as  authority, 
the  learned  judge  was  substantially  correct  in  employing  the 
language  recited  in  the  fourth  specification.  Cornelius  v.  Ham- 
bay,  150  Pa.  St.  359.     *     *     * 

Judgment  affirmed. 

In  an  action  for  breach  of  promise  of  marriage,  birth  of  an  illegiti- 
mate cliild  can  be  proved  in  aggravation  of  damages.     Tubbs  v.  Van 


550  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

Kleek.  12  111.  44G.  In  such  an  action  the  wealth  of  defendant  can  be 
shown  on  the  question  of  damages.     Jacohy  v.  Stark,  20r)  111.  84. 

In  Gi'able  v.  Marsmve,  4  111.  372,  it  was  held  that  evidence  of  the 
pecuniary  condition  of  the  father  was  allowable  on  the  question  of 
daniajros. 

It  was  held  in  Stewart  v.  Smith,  1)2  Wis.  7(i,  that  in  an  action  for  the 
seduction  of  plaintiff's  daughter,  evidence  was  admissible,  in  mitiga- 
tion of  damages,  to  show  her  want  of  chastity  prior  to  the  seduction; 
such  evidence,  including  not  only  her  general  reputation,  and  specific 
acts  of  unchastity,  but  also  impure  conversation  and  improper  fa- 
miliarity with  men. 

Loss  of  services,  loss  of  comfort  and  consolation,  disgrace,  and  dis- 
honor are  elements  of  recovery  in  an  action  by  a  parent  for  the  se- 
duction of  his  daughter,  and  where  intercourse  is  admitted,  but  seduc- 
tion denied,  plaintiff  may  show,  in  aggravation  of  damages,  that  the 
defendant  after  discovering  that  she  was  in  the  family  way  agreed 
to  marry  her.     Milliken  v.  Long,  188  Pa.  411. 


13.     Crimi7ial  Conversation. 

ANGELL  V.  REYNOLDS. 
Rhode  Island,  1904.     26  R.  I.  160. 

TiLLiNGHAST,  J.  This  is  an  action  of  trespass  on  the  case  for 
alienating  the  affection  of  the  plaintiff's  husband,  whereby  she 
alleges  that  she  wholly  lost  his  society,  aid,  and  support.  At  the 
trial  of  the  case  in  the  common  pleas  division  a  verdict  was  ren- 
dered in  favor  of  the  plaintiff,  and  her  damages  were  assessed 
at  the  sum  of  $1,500.  The  case  is  now  before  us  on  the  de- 
fendant 's  petition  for  a  new  trial  on  the  grounds  that  the  verdict 
was  against  the  evidence,  and  that  certain  rulings  of  the  trial 
court  were  erroneous. 

The  rulings  specially  relied  on  by  defendant's  counsel  as  be- 
ing erroneous,  and  the  only  ones  which  we  feel  called  upon  to 
consider,  were  those  relating  to  certain  testimony  offered,  and 
certain  refusal  of  requests  to  charge,  bearing  upon  the  question 
of  damages.  The  defendant  offered  to  prove,  in  substance,  that 
plaintiff's  husband  had  been  improperly  familiar  with  other 
women  than  herself  during  the  same  period  that  she  was  charged 
with  having  maintained  illicit  relations  with  him,  and  hence  that 
she  was  not  responsible,  in  any  event,  for  all  the  damages  which 
the  plaintiff  had  sustained  in  the  premises.    In  other  words,  the 


CRIMINAL  CONVERSATION.  551 

defendant 's  contention,  in  effect,  was  that  the  plaintiff 's  husband 
was  a  man  of  general  bad  character  as  a  husband,  and  hence 
that  the  plaintiff  could  not  look  to  her  for  all  the  damages  which 
she  had  sustained  thereby.  However  ungracious,  or  even  odious, 
such  a  defense  may  seem  to  be  from  a  purely  moral  standpoint, 
it  is  doubtless  one  which  a  defendant  may  interpose  in  a  case  of 
this  sort.  The  question  here  is,  how  much  has  the  plaintiff  been 
damaged  by  the  wrongful  acts  of  the  defendant  in  the  premises, 
and  not  by  the  wrongful  acts  of  others  in  the  same  direction? 
And  if  it  should  be  made  to  appear  that  the  husband's  affection 
for  his  wife  had,  for  any  cause,  commenced  to  wane  before  his 
intimacy  with  the  defendant  commenced,  and  that  the  defendant, 
taking  advantage  of  that  condition  of  things,  secured  for  herself 
what  there  was  left  of  his  love  for  his  wife,  she  can  only  be  legally 
called  upon  to  make  the  plaintiff  whole  for  the  share  thereof 
which  she  thus  took  from  her.  Or,  to  state  it  differently,  what 
was  the  loss  which  the  plaintiff  sustained  by  reason  of  the  part 
which  the  defendant  took  in  the  premises?  It  is  true,  this  may 
seem  like  an  impossible  question  for  a  jury  to  answer,  for  how 
far  the  charms  and  blandishments  of  one  woman,  as  compared 
with  those  of  another  or  of  others,  may  go  in  accomplishing  the 
total  destruction  of  a  husband 's  affection  for  his  wife,  cannot  be 
determined  by  any  mathematical  rules.  But  yet,  like  many  other 
questions  in  practical  life,  it  is  capable  of  a  reasonable  solution. 
The  law  bearing  upon  the  question  under  consideration  doubt- 
less is  that  "evidence  in  mitigation  of  damages  will  be  received 
if  it  tends  to  show  that  the  plaintiff  has,  in  fact,  suffered  less 
injury  than  would  otherwise  be  a  probable  inference  from  the 
acts  proved."  Sutherland  on  Damages  (3d  Ed.)  §  745.  Hence, 
in  a  case  of  this  sort,  it  is  proper  to  show  unhappy  relations  be- 
tween the  plaintiff  and  her  husband,  or  that  she  was  wanting  in 
affection  for  him  (Hadley  v.  Heywood,  121  Mass.  236;  Coleman 
V.  White,  43  Ind.  429 ;  Palmer  v.  Crook,  7  Gray,  418 ;  Peek  v. 
Traylor  [Ky.l  34  S.  W.  705;  Rudd  v.  Rounds,  64  Vt.  432;  Rose 
V.  Mitchell,  21  R.  I.  270),  or  that  there  had  been  improper 
familiarities  botween  him  and  other  women  (Norton  v.  Warner, 
9  Conn.  172;  Waldron  v.  Waldron  [C.  C]  45  Fed.  315).  In 
Bailey  v.  Bailey,  94  Iowa,  598,  which  was  an  action  by  a  wife 
against  her  father-in-law  for  alienating  the  affections  of  her 
husband,  it  was  held  to  be  reversible  error  to  exclude  evidence 
showing  what  the  husband's  state  of  mind  towards  his  wife  was, 


552  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

and  that  other  causes  than  the  defendant's  acts  had  to  do  with 
the  alienation.    In  Churchill  v.  Lewis,  17  Abb.  N.  C.  226,  it  was 
held  that  the  true  relations  between  the  plaintiff  and  her  hus- 
band,    and    whether    happy,     or     otherwise     before     the     ac- 
quaintance   with    defendant;    the    state    of    his    feeling    and 
the     extent     of     his  affections     toward     his     wife;     and     the 
effect  produced  upon  the  plaintiff  by  the  existence  of  the  rela- 
tions between  her  husband  and  the  defendant,  as  they  appeared 
to  her  at  the  time — may  be  considered  by  the  jury  in  estimating 
the  damages.    Prettyman  v.  Williamson,  1  Pennewill,  22-1: ;  Schorn 
V.  Berry,  63  Hun,  110;  Browning  v.  Jones,  52  111.  App.  597; 
1  Greenl.  Ev.  (13th  Ed.)  §  102;  Cool.  Torts  (2d  Ed.)  pp.  263, 
264;  Abbott's  Trial  Ev.  686;  Ency.  Ev.  vol.  1,  pp.  765,  766,  and 
cases  cited;  2  Hilliard  on  Torts,  p.  509,  §  21— are  amongst  the 
numerous  authorities  to  the  same  general  effect.    But  plaintiff's 
counsel  contends  that,  even  conceding  that  her  husband  had  im- 
proper relations  with  other  women  than  the  defendant,  yet,  as 
the  evidence  shows  that  the  plaintiff  was  not  aware  of  that  fact, 
and  that,  as  he  was  affectionate  towards  her,  and  made  a  satis- 
factory husband,  until  the  defendant  interferred  in  the  premises, 
it  was  not  competent  for  the  defendant  to  prove  his  secret  vices, 
unless  it  could  also  be  shown  that  they  resulted  to  the  injury  of 
the  plaintiff.    We  cannot  agree  with  this  contention.    A  wife  is 
entitled  to  the  full  and  undivided  conjugal  affection  of  her  hus- 
band, and  it  is  quite  impossible  that  she  should  enjoy  this  right 
if  he  is  improperly  familiar  with  other  women.     There  must 
necessarily  be  at  least  a  weakening  of  the  affections,  or  what  is 
technically  known  as  "the  loss  of  consortium,"  in  every  such 
case — that  is,  a  deprivation  of  the  full  society,  affection,  and 
assistance  to  which  a  wife  is  entitled;  and  hence,  whether  she 
has  knowledge  of  the  wrong  or  not,  it  cannot  fail  to  result  to 
her  injury.     The  marital  rights  of  a  woman  are  unlawfully  in- 
vaded whenever  any  one  steps  in  between  her  and  her  husband, 
whether  with  or  without  her  knowledge,  and  secures  any  part  of 
the  society,  affection,  or  assistance  which  belongs  to  her.     And 
for  such  unlawful  act  the  wife  is  entitled  to  be  remunerated 
in  damages.    It  follows,  then,  in  the  case  at  bar,  that  if  the  de- 
fendant could  show  that  others  than  herself  had  also  been  guilty 
of  alienating  the  affection  of  the  plaintiff's  husband  to  any  ex- 
tent, although  this  fact  was  unknown  to  the  plaintiff,  she  had  the 


CRIMINAL  CONVERSATION.  553 

right  to  do  so  in  mitigation  of  damages.  Wolf  v.  Frank,  92 
Md.  138. 

An  examination  of  the  evidence  in  the  case  shows  that  up  to  the 
time  when  the  plaintiff 's  husband  went  away  with  the  defendant 
he  furnished  her  with  a  comfortable  support,  paying  over  to  her 
his  entire  wages,  and  contributing  generally  to  her  comfort  and 
happiness ;  but  that  after  the  defendant  interfered  in  the  prem- 
ises, and  won  his  affection,  he  absolutely  neglected  the  plaintiff, 
giving  her  no  money  for  food  or  clothing,  so  that  she  was  obliged 
to  procure  the  necessaries  of  life  as  best  she  could.  It  also  ap- 
pears by  the  uncontradicted  testimony  in  the  case  that  the 
plaintiff  and  her  husband  were  fond  of  each  other,  and  had  no 
trouble,  until  he  became  acquainted  with  the  defendant ;  that  the 
latter  wrote  him  a  large  number  of  love  letters,  wherein  it  ap- 
pears that  she  had  great  affection  for  him — that  she  desired  to 
marry  him;  that  she  made  appointments  to  meet  him  in  Provi- 
dence and  elsewhere  for  improper  purposes;  that  she  was  un- 
willing that  this  intimacy  should  cease,  although  he  desired  it; 
and  that  in  all  these  matters  she  was  the  aggressive  party.  In 
view  of  these  facts,  and  of  the  further  fact  that  the  defendant  did 
not  personally  deny  any  of  the  charges  made  against  her,  and 
did  not  even  testify  in  her  own  behalf  at  the  trial,  it  appears 
beyond  question  that,  even  if  she  was  not  guilty  of  alienating  the 
affections  of  the  plaintiff's  husband  as  a  whole,  yet  she  was  the 
main  cause  thereof.  And  hence,  while  a  new  trial  must  be 
granted  on  account  of  the  error  of  the  trial  court  in  ruling  out 
the  evidence  which  was  offered  in  mitigation  of  damages,  as  afore- 
said, there  is  no  occasion  for  a  new  trial  on  the  merits  of  the 
case,  and  we  will  therefore  grant  a  new  trial,  the  same  to  be 
limited  to  the  question  of  damages  only. 

Case  remanded  for  a  new  trial  in  accordance  with  this  opinion. 


SHANNON  V.  SWANSON. 

Illinois,   1904.     208   111.   52. 

BoGGS,  J.  This  was  an  action  on  the  case,  brought  by  the  de- 
fendant in  error  against  the  plaintiff  in  error  for  the  seduction 
and  alienation  of  the  affections  of  Louise  Swanson,  wife  of  the 
defendant  in  error,  by  the  plaintiff  in  error.  On  the  trial  before 
the  court  and  a  jury,  judgment  was  entered  in  favor  of  the 


55-1  DAMAGES  IN  ACTIONS  FOR  WRONGS. 

defendant  in  error  in  the  sum  of  $1,000,  and  the  judgment  was 
aftirmed  by  the  Appellate  Court  for  the  Second  District.  The 
record  is  before  us  on  a  writ  of  error.     *     *     * 

A  husband  is  entitled  to  recover  substantial  damages  from 
one  who  has  committed  adultery  with  his  wife,  although  he 
proves  no  resulting  expense  or  loss  of  services  (Yundt  v.  Hart- 
runft,  41  111.  9;  8  Am.  &  Eng.  Ency.  of  Law  [2d  Ed.]  266),  and 
this  answers  the  complaints  as  to  instructions  Nos.  2  and  6. 

It  is  complained  that  instruction  No.  3  contains  an  assumption 
that  the  plaintiff  in  error  had  been  guilty  of  adultery  with  the 
wife  of  the  defendant  in  error,  and,  as  to  the  fourth  instruction, 
that  it  assumes  the  relations  between  the  husband  and  wife  were 
cordial  and  affectionate.  Both  of  the  instructions  are  so  drawn 
as  that  they  are  likely  to  provoke  the  criticism  made  against 
them.  The  purpose  of  instruction  No.  3  was  to  advise  the  jury 
of  the  general  legal  principle  that  the  fact  that  a  husband  has 
forgiven  the  conduct  of  an  adulterous  wife  does  not  relieve  the 
seducer  of  the  wife  from  legal  liability  to  answer  in  damages  to 
the  husband,  and  the  language  found  in  an  opinion  of  the  Su- 
preme Court  of  New  Hampshire  announcing  that  doctrine  was 
framed  into  the  instruction.  In  the  concluding  portion  of  the 
instruction  the  phrase,  "if  any  you  find  from  the  evidence," 
clearly  refers  to  the  words  "offenses  of  the  defendant,"  found 
immediately  preceding  such  phrase,  and  would,  we  think,  pre- 
vent the  jury  from  being  misled  to  believe  the  court  assumed  it 
to  be  true,  or  to  have  been  proven,  that  defendant  had  com- 
mitted the  offense  of  adultery.  There  is  no  assumption  of  fact 
in  the  fourth  instruction.  Whether  the  relations  between  the 
husband  and  wife  were  cordial  and  affectionate  was  left  by  it  to 
be  determined  by  the  jury  from  the  evidence. 

The  fact  that  Parker  Shannon,  a  brother  of  the  plaintiff  in 
error,  had  also  had  intercourse  with  the  wife  of  the  defendant 
in  error,  and  that  the  defendant  in  error  had  instituted  an  action 
against  him,  and  in  settlement  of  the  suit  had  received  the 
sum  of  $1,000  from  Parker,  and  had  executed  a  release  of  the 
cause  of  action  against  Parker,  did  not  bar  the  action  against 
the  plaintiff  in  error,  or  make  it  incumbent  upon  the  trial  judge 
to  grant  the  motion  for  an  instruction  directing  a  peremptory 
verdict  for  the  defendant.  The  acts  of  adultery  of  Parker  Shan- 
non and  of  the  plaintiff  in  error  were  separate  and  distinct  acts, 
and  not  one  act  or  wrong,  and  no  right  of  action  accrued  against 


CRIMINAL  CONVERSATION.  555 

them  jointly.  There  being  no  joint  liability,  the  doctrine  that 
satisfaction  by  one  joint  tort  feasor  bars  recovery  against  all 
other  of  such  tort  feasors  has  no  application.  Yeazel  v.  Alex- 
ander, 58  111.  254 ;  Chicago  &  Northwestern  Railway  Co.  v.  Scates, 
90  lU.  586.    The  judgment  is  affirmed. 

Judgment  affirmed. 

In  actions  of  tort,  and  certainly  in  crim.  con.,  the  amount  of 
damages  is  peculiarly  within  the  discretion  of  the  jury,  so  that  appel- 
late courts  will  disturb  the  verdict  only  where  passion  and  prejudice 
are  shown.     Speck  v.  Gray,  14  Wash.  589. 

In  crim.  cou.  the  deprivation  of  services  is  not  one  that  implies  a 
loss  measurable  by  pecuniary  standards  of  value.  The  husband  is 
entitled  to  "consortium"  or  conjugal  fellowship.  If  statutes  give  the 
wife  her  own  earnings  that  makes  no  difference  with  the  husband's 
claim.     Long  v.  Booe,  106  Ala.  570. 

If  the  love  and  harmony  and  affectionate  intercourse  of  husband 
and  wife  had  been  previously  impaired  through  the  misconduct  of  the 
husband,  this  may  be  shown  in  mitigation  of  damages,  if  pleaded. 
Palmer  v.  Cook,  7  Gray  418. 


VII.     BREACH  OF  PROMISE  TO  MARRY. 

KELLERT  v.  ROBIE. 

Wisconsin,   1898.     99   Wis.   303, 

WiNSLOW,  J.  This  is  an  action  for  breach  of  promise  of  mar- 
riage, and  the  plaintiff  has  obtained  a  judgment  for  damages 
fixed  at  $3,500.  The  contract  of  marriage  was  admitted,  but 
the  defendant  claimed  that  there  was  a  subsequent  mutual  re- 
lease. This  Avas  denied  by  the  plaintiff,  and  upon  this  issue  the 
case  was  tried.  The  evidence  showed  that  the  parties  became  en- 
gaged August  30,  1890,  the  plaintiff  then  being  twenty  years 
of  age ;  and  it  was  agreed  that  the  marriage  should  not  take  place 
for  three  years.  The  parties  were  farmers'  children,  and  lived 
with  their  parents  in  adjoining  towns  in  Winnebago  county, 
about  a  mile  and  a  half  from  each  other.  After  the  engagement, 
the  defendant  frequently  called  upon  the  plaintiff  until  Decem- 
ber 17,  1893,  at  which  time  the  defendant  claims  that  the  plaintiff 
suggested  to  him  that,  as  long  as  his  (defendant's)  people  were 
opposed  to  the  match,  they  should  separate,  and  call  the  en- 
gagement off,  and  that  he  assented  to  this  proposition.  The  de- 
fendant never  called  on  the  plaintiff  after  this  time,  although 
they  had  some  correspondence,  which  is  in  the  record.  Soon  after 
this  alleged  conversation,  the  defendant  commenced  to  call  upon 
another  young  lady  in  the  neighborhood,  and  continued  to  pay 
attention  to  her  without  objection  on  the  part  of  the  plaintiff, 
until  he  was  married  to  her  in  December,  1895.  The  plaintiff 
denied  positively  that  she  released  the  defendant  from  the  en- 
gagement. In  the  course  of  her  examination  as  a  party  under 
section  4096,  Rev.  St.,  she  admitted  that  they  had  a  conversation 
in  December,  ]  893,  in  which  she  says,  ' '  I  told  him  if  he  did  not 
want  to  marry  me,  of  course  he  could  suit  himself;  but  he  said 
he  was  marrying  me,  not  his  people,  and  he  came  to  see  me  just 
the  same."  The  evidence  showed  that  the  defendant  was  worth 
about  $6,000.  composed  of  his  interest  in  the  estates  of  his  father 
and  grandfather,  both  of  which  were  still  unsettled. 

Several  exceptions  to  rulings  upon  evidence  and  to  the  charge 

556 


BREACH  OF  PROMISE  TO  MARRY.  557 

of  the  court  were  argued  by  the  appellant,  but,  as  we  do  not  think 
we  should  be  compelled  to  reverse  the  judgment  on  account  of 
them  alone,  we  shall  not  discuss  them,  but  proceed  to  the  main 
question,  namely,  whether  the  verdict  is  contrary  to  the  evidence. 
Upon  this  question,  after  careful  consideration  of  all  the  evidence, 
and  especially  of  the  letters  written  by  the  plaintiff  after  the 
alleged  release,  we  can  come  to  no  conclusion  except  that  the 
verdict  is  clearly  against  the  preponderance  of  the  evidence. 
These  letters  demonstrate  to  a  certainty  that  something  of  a  seri- 
ous nature  had  interrupted  the  relations  of  the  parties  about  the 
time  that  the  defendant  alleges  the  release  took  place.  No  ex- 
planation as  to  what  this  serious  event  was  is  offered  except  the 
defendant's  explanation  of  a  release.  We  shall  not  give  the 
letters  in  full,  but  content  ourselves  with  some  extracts,  which 
seem  to  conclusively  establish  that  the  former  relationship  was 
broken  off,  and  that  marriage  was  no  longer  contemplated.  In  a 
letter  of  January  21,  1894,  she  says:  "Fred:  If  you  desire  a 
change,  why  take  it,  and  end  the  matter  right  here.  As  I  said 
previously,  I  cannot  count  second.  I  am  glad  of  one  thing:  if 
we  do  separate  forever,  you  can  always  think  that  I  performed 
my  duty  by  you  from  the  very  first  to  the  last."  On  March  1, 
1894,  she  wrote :  "Fred :  You  may  think  it  queer  on  my  part  in 
asking  you  to  come  and  see  me,  after  what  has  happened.  I 
would  never  do  so  if  it  were  not  absolutely  necessary,  Fred ;  that 
you  know.  I  know  it  will  cause  hard  feelings,  but  I  cannot  help 
it.  You  must  know,  and  the  sooner  the  better.  So  let  me  see 
you  as  soon  as  possible.  If  I  have  done  wrong  in  writing,  please 
forgive  me,  Fred;  it  is  for  your  and  my  welfare."  On  March 
8,  1894,  she  wrote  again:  "I  just  want  you  to  come  just  once, 
and  risk  everything  to  oblige  me.  Your  trouble  is  as  nothing 
compared  to  mine.  I  knew  you  were  in  town  Monday.  I  seen 
your  horse,  and  someway  I  felt  you  were  there.  I  don't  feel 
hard  toward  you  one  bit,  Fred.  You  will  find  me  just  the  same. 
I  am  not  fickle ;  once  is  forever  with  me ;  so  don 't  feel  bad  about 
nothing.  You  shall  never  suffer  through  me  again.  I  hope  the 
day  may  come  when  you  forget  that  you  ever  knew  me.  *  *  * 
Now,  Fred,  if  you  don 't  want  to  come,  and  if  you  think  you  will 
be  happier  by  staying  away,  why  I  will  try  and  bear  it." 
When  the  plaintiff  said  to  the  defendant  in  her  letter  of  January 
21st,  "If  you  desire  a  change,  take  it,  and  end  the  matter  right 
here,"  we  can  see  no  escape  from  the  conclusion  that  it  was  an 


558  BREACH  OP  PROMISE  TO  MARRY. 

offer  of  freedom  from  the  engagement ;  and  when  it  further  ap- 
pears that  the  defendant  acted  upon  this  or  a  similar  offer,  and, 
without  objection  from  the  phiintift',  but  with  her  knowledge, 
courted  and  married  another  woman,  it  must  be  considered  that 
the  offer  was  accepted,  and  that  the  plaintiff'  has  become  bound 
by  the  offer  and  its  acceptance.  We  are  unable  to  understand 
how,  in  the  face  of  this  evidence,  the  jury  could  have  found  that 
there  was  not  a  mutual  release  of  the  engagement.  In  connec- 
tion with  this  unaccountable  verdict,  we  cannot  refrain  from 
saying  that  the  damages  awarded  are  grossly  excessive,  and  that 
we  should  feel  obliged  to  reverse  upon  this  ground  in  any  event. 
The  defendant's  estate  amounted  to  about  $6,000,  and  there  are 
no  circumstances  of  aggravation  in  the  case.  The  defendant  is 
now  married,  and  to  give  considerably  more  than  half  of  his 
property  as  damages  upon  the  facts  appearing  here,  even  if  there 
had  been  no  express  release,  we  regard  as  out  of  the  bounds  of 
reason.  The  damages  are  so  far  excessive  as  to  show  passion,  if 
not  perversity,  on  the  part  of  the  jury. 

Judgment  reversed,  and  action  remanded  for  a  new  trial. 


EGBERTS  V.  DRUILLARD. 
Michigan,  1900.     123  Mich.  286. 

Hooker,  J.  In  an  action  for  breach  of  promise  of  marriage, 
the  court  permitted  plaintiff's  counsel  to  prove  various  slan- 
derous statements  concerning  the  plaintiff,  made  by  the  defendant 
to  third  parties  at  different  places  and  times,  after  the  relations 
had  ended,  in  the  absence  of  the  plaintiff,  as  a  reason  for  break- 
ing his  engagement  and  refusing  to  marry  her.  There  is  no  doubt 
that  this  testimony  was  admissible  under  authorities  hereinafter 
cited,  but  an  improper  use  was  made  of  it.  The  court  instructed 
the  jury  that  "therefore,  if  the  jury  find  from  the  evidence  that 
the  defendant  wantonly,  recklessly,  and  unjustifiably  broke  off 
his  engagement  with  the  plaintiff,  and  you  further  find  from  the 
evidence  that  in  order  to  excuse  himself  for  so  doing  he  made 
statements  regarding  her  physical  condition  which  would  bring 
her  into  even  greater  ridicule  and  contempt  than  the  mere  break- 
ing off  of  the  engagement  would  do,  and  the  tendency  of  which 
would  be  to  disgrace  her  and  ruin  her  future  prospects  and  wel- 
fare, and  you  further  find  from  the  evidence  that  such  statements 


BREACH  OF  PROMISE  TO  MARRY.  559 

were  untrue,  and  that  the  defendant  knew  or  had  good  reason  to 
believe  them  to  be  false  and  untrue,  and  made  such  statements 
in  bad  faith,  then  you  should,  in  the  exercise  of  a  sound  and 
reasonable  discretion,  award  her  such  additional  damages  as  in 
your  judgment  she  has  suffered  by  reason  of  the  false  and  slan- 
derous statements  so  made  by  the  defendant."     This  language 
was  broad  enough  to  lead  the  jury  to  understand  that  thej^  could 
award  full  damages  for  these  slanders  to  the  same  extent  as  would 
have  been  permissible  had  the  various  slanders  been  counted 
upon  in  an  action  for  defamation.     It  has  been  said  that  the 
testimony  was  admissible,  but  it  was  only  for  the  purpose  of 
showing  a  bad  motive,  by  way  of  aggravation  of  damages,  just 
as  willfulness  and  malice  may  be  shown  in  a  case  of  tort,  to  which 
this  class  of  cases  are  by  the  authorities  cited  said  to  be  analogous 
in  some  respects.    The  proof  of  these  slanders  was  admissible,  not 
as  substantive  causes  of  action,  but  as  explanatory  of  the  act  of 
the  defendant  in  breaking  the  contract,  just  as  a  libel  not  de- 
clared upon  is  admissible  to  explain  the  animus  of  a  defendant 
in  publishing  the  libel  counted  upon  in  an  action  for  defamation. 
An  examination  of  the  authorities  will  show  this.    In  those  juris- 
dictions where  punitory  damages  are  permitted,  the  rule  is  that 
these  slanders  may  be  shown  as  a  basis  for  them.     Sutherland 
says,  in  his  work  on  Damages  (section  987),  that  circumstances 
are  admissible  to  show  wantonness  and  ruthlessness,  and  that 
she  may  be  allowed,  not  only  full  compensation  (i.  e.,  for  the 
breach  of  promise,  not  slander),  but  by  way  of  punishment. 
There  is  nothing  in  the  quotation  from  Sutherland  cited  which 
in  my  opinion  justifies  the  inference  that  compensation  for  the 
direct  injuries  occasioned  by  such  slanders  are  recoverable  in  the 
action  for  breach  of  promise,  or  that  they  may  not  be  recovered 
in  an  action  of  slander,  despite  a  previous  recovery  of  legitimate 
damages  in  an  action  for  the  breach  of  promise  of  marriage.    In 
Southard  v.  Rexford,  6  Cow.  261,  the  court  went  no  further  than 
to  say  that  a  slanderous  defense  is  a  circumstance  that  may  aggra- 
vate damages.    In  Kniffen  v.  McConnell,  30  N.  Y.  291,  292,  this 
is  the  interpretation  put  upon  the  opinion  in  Southard  v.  Rex- 
ford, and  it  is  said  that  such  rule  is  an  anomaly,  and  "should 
not  be  extended  further  than  that  case  has  carried  it."    These 
cases  are  reviewed  in  Thorn  v.  Knapp,  42  N.  Y.  474,  showing  that 
these  cases  stand  upon  the  proposition  that,  "in  an  action  for 
breach  of  promise  of  marriage,  it  is  competent,  for  the  purpose  of 


560  BREACH  OF  PROMISE  TO  MARRY. 

enhancing  the  damages,  to  prove  the  motives  that  actuated  the 
defendant;  that  he  entered  into  the  contract  and  broke  it  with 
bad  motives  and  a  wicked  heart."  In  Johnson  v.  Jenkins,  24 
N.  Y.  252,  Judge  Allen  clearly  shows  the  use  to  be  made  of  such 
evidence.  He  says:  "Every  circumstance  attending  the  break- 
ing off  of  the  engagement  becomes  a  part  of  the  res  gestae.  The 
reasons  which  were  operative  and  influential  with  the  defendant 
are  material,  so  far  as  they  can  be  ascertained ;  and  whether  they 
are  such  as,  tending  to  show  a  willingness  to  trifle  with  the  con- 
tract and  with  the  rights  of  the  plaintiff,  should  enhance  the 
damages,  or,  on  the  contrary,  showing  a  motive  consistent  with 
any  just  appreciation  of  and  regard  for  his  duties,  should  con- 
fine the  damages  within  the  limit  of  a  just  compensation,  will 
always  be  for  the  jury  to  determine.  *  *  *  Had  the  de- 
fendant by  his  declarations  shown  a  wicked  mind  in  the  transac- 
tion, it  is  evident  that  they  very  properly  would  have  been  sub- 
mitted to  the  jury  further  to  enhance  the  damages."  "Suppose 
he  had  told  the  plaintiff,  at  any  time  before  the  trial  of  the  action, 
that  he  had  discontinued  his  visits  and  broken  the  contract  be- 
cause she  was  a  prostitute;  could  she  not,  upon  the  same  prin- 
ciples, have  proved  this  in  enhancement  of  damages?  No  dam- 
ages could  be  allowed  for  defaming  her  by  the  utterance  of  these 
words ;  but  they  could  be  proved  as  showing  the  mind  with  which 
the  contract  was  broken,  and  as  thus  bearing  upon  the  damages 
to  be  allowed  for  that."  Thorn  v.  Knapp,  42  N.  Y.  479.  In 
Chellis  V.  Chapman,  125  N.  Y.  214,  the  same  doctrine  is  adhered 
to,  viz.,  that  the  damages  may  be  enhanced  by  proof  of  breach 
of  contract  from  bad  motives.  In  Sherman  v.  Rawson,  102  IMass. 
399,  the  court  said:  "Damages,  it  is  true,  must  be  awarded  solely 
for  the  suffering  which  would  result  from  the  defendant's  refusal 
to  perform  his  promise," — adding  that  they  cannot  be  justly 
estimated  without  taking  into  consideration  the  circumstances  of 
the  relation  and  the  breach.  Baldy  v.  Stratton,  11  Pa.  St.  325, 
goes  no  further,  and  we  have  not  found  a  single  case  that  per- 
mits full  recovery  for  such  slanders  as  are  proven  in  this  case  in 
an  action  for  the  breach  of  promise,  or  that  holds  that  an  action 
for  slander  is  barred  by  a  judgment  upon  the  breach  of  promise. 
The  judgment  should  be  reversed,  and  a  new  trial  ordered.  The 
other  justices  concurred. 


BREACH  OF  PROMISE  TO  MARRY.  561 

SALCHERT  v.  REINIG. 

Wisconsin,   1908.     135  Wis.  194. 

Action  for  breach  of  promise  to  marry,  alleged  to  have  been 
made  about  the  1st  of  August,  1902,  aggravated  by  seduction 
accomplished  in  reliance  upon  said  promise,  and  followed  by 
nearly  three  years  of  frequent  illicit  connection  between  the 
parties.  The  defendant  denied  any  promise  of  marriage,  but  ad- 
mitted the  establishment  and  continuance  of  such  illicit  relations 
upon  the  basis  of  a  cash  payment  on  each  occasion  thereof.  The 
answer  pleaded  was  a  simple  general  denial.  The  jury,  by  special 
verdict,  found  that  about  the  1st  of  August  defendant  did  offer 
or  promise  to  marry  the  plaintiff,  and  that  she  accepted  the  offer ; 
that  said  offer  or  promise  Avas  not  conditioned  upon  sexual  in- 
tercourse or  upon  her  becoming  pregnant  by  him ;  that  plaintiff 
held  herself  ready  and  willing  to  marry  the  defendant  until  his 
wedding  with  another  woman  in  April,  1906;  that  the  time  be- 
tween the  making  of  such  promise  and  said  April,  1906,  was  a 
reasonable  time  for  the  engagement  to  continue  without  marriage 
taking  place ;  assessed  the  damages  for  breach  of  promise,  regard- 
less of  any  question  of  seduction,  at  $10.000 ;  and  by  the  eighth 
answer  found  that  the  defendant  seduced  the  plaintiff  ''under 
such  promise;"  and  by  the  ninth  answer  that  the  damages  by 
reason  of  the  seduction  was  $5,000.  Motions  for  nonsuit  and 
for  direction  of  verdict  in  favor  of  defendant  were  duly  made 
and  overruled,  with  exception,  and,  after  verdict,  motion  was 
made  to  change  the  answers  of  the  several  questions  and  to  ren- 
der judgment  for  the  defendant,  and  if  that  be  denied  that  the 
verdict  be  set  aside,  and  a  new  trial  granted ;  all  of  which  motions 
were  denied,  over  exception,  and  judgment  rendered  for  both 
sums  of  damages  included  in  the  special  verdict,  to  wit,  $15,000, 
from  which  judgment  the  defendant  appeals. 

Dodge,  J.  Appellant's  most  urgent  contention  is  that  the  trial 
court  erred  in  refusing  to  direct  verdict  for  defendant,  or  to  in- 
sert answers  in  the  special  verdict  negativing  the  promise  of 
marriage,  and  that  he  also  erred  in  not  setting  aside  that  verdict 
as  opposed  by  great  weight  and  preponderance  of  evidence. 
The  action  of  a  trial  court  in  the  second  respect  is  an  exercise 
of  discretion  with  which  the  appellate  court  will  not  interfere. 
Although  convinced  that  some  credible  evidence  supports  the 
verdict,  if  the  trial  judge  is  persuaded  that  such  evidence  is  rela- 

36 


562  BREACH  OF  PROMISE  TO  MARRY. 

tively  so  weak  or  unconvincing,  when  compared  with  the  adverse 
evidence,  that  there  is  danger  that  the  verdict  will  work  injus- 
tice, he  is  vested  with  a  broad  discretion  to  protect  against  such 
peril  by  granting  the  parties  a  new  trial.  Bannon  v.  Ins.  Co., 
115  Wis.  250 ;  Peat  v.  Ry.  Co.,  128  Wis.  86.  But  when  this  stage 
has  been  passed,  the  question  whether  the  court  should  direct  a 
verdict,  or  whether  this  court  on  appeal  may  in  effect  do  so,  de- 
pends merely  upon  whether  there  is  any  credible  evidence  which, 
in  the  most  favorable  view,  and  granting  all  reasonable  inferences 
and  construction  in  favor  of  the  conclusion  of  the  jury,  tends  to 
support  the  verdict.  To  declare  sworn  testimony  of  a  fact  in- 
credible we  mu.st  be  convinced  that  it  is  so  in  conflict  with  the 
uniform  course  of  nature  or  with  fully  established  physical  facts 
that  no  reasonably  intelligent  man  could  give  it  credence.  Beyer 
V.  Ins.  Co.,  112  Wis.  138 ;  Hirte  v.  Eastern  Wis.  Ry.  &  L.  Co., 
127  Wis.  230;  Peat  v.  Ry.  Co.,  128  Wis.  86.  In  this  case  the 
plaintiff  testified  positively  to  the  fact  of  a  promise  of  marriage, 
and  of  course  this  suffices  of  itself  to  support  the  verdict  on  that 
subject,  unless  rendered  incredible  by  other  evidence  in  the  sense 
above  stated.  No  corroboration  is  required.  Giese  v.  Schultz, 
65  Wis.  487.  It  is  opposed  in  the  first  instance  by  the  categorical 
denial  of  the  defendant,  but  this  simply  presents  a  case  of  two 
conflicting  witnesses,  one  or  the  other  of  whom  may  be  credited 
by  a  reasonable  person  according  to  their  appearance,  interest, 
fairness,  and  manner  of  testifying.  While  the  plaintiff  is  in- 
volved in  some  measure  of  contradiction  as  to  the  details  of  the 
interview  in  which  the  promise  was  made,  so  also  is  the  de- 
fendant's testimony  permeated  by  contradictions,  uncertainty, 
and  evasion.  Throughout  his  examination,  under  section  4096, 
Stat.  1898,  through  many  consecutive  answers  relating  to  the 
most  material  events  he  contented  himself  with  denying  memory 
or  knowledge,  and  later  testified  thereto  fully  and  in  detail, 
thus  placing  his  testimony  at  one  time  in  direct  contradiction 
therewith  at  another.  Again,  there  is  the  asserted  improbability 
that  a  man  in  his  rank  of  life  would  engage  himself  in  marriage 
to  the  plaintiff,  and  there  is  conduct  on  her  part  considered  by 
the  defendant's  attorney  as  variant  from  that  which  usually 
accompanies  the  relations  between  engaged  persons.  But  we  can 
see  nothing  in  this  more  than  mere  improbability,  and  not  enough 
to  make  it  impossible  for  an  ordinarily  intelligent  person  to  be- 
lieve in  the  existence  of  the  prom.ise  of  marriage  notwithstanding 


BREACH  OF  PROMISE  TO  MARRY.  563 

such  conduct.  The  unsavory  character  of  the  evidence  descriptive 
of  the  relations  of  the  parties  must  make  it  suffice  to  state  our 
conclusion  that  after  careful  examination  thereof  we  cannot  deem 
any  of  the  facts  disclosed  as  so  inconsistent  with  plaintiff's  testi- 
mony as  to  this  promise  as  to  render  it  so  incredible  that  it  might 
not  by  reasonable  men  be  believed,  and  so  that  it  obviously  fur- 
nishes support  for  that  part  of  the  verdict.     *     *     * 

We  cannot  think  the  contention  that  the  damages  are  excessive 
worthy  of  extended  consideration  liy  the  appellate  court  after  ad- 
verse ruling  below.  Ten  thousand  dollars  for  the  loss  of  a  mar- 
riage to  a  man  of  the  wealth  which  evidence  at  least  tended  to 
ascribe  to  the  defendant,  after  an  engagement  of  some  four  years, 
is  well  within  the  limits  of  verdicts  which  have  been  sustained. 
The  translation  into  terms  of  money  of  those  peculiarly  indefinite 
damages  which  result  from  a  breach  of  such  a  contract  is  so  a 
matter  of  estimate  that  courts  on  appeal  are  extremely  reluctant 
to  interfere  with  the  conclusion  of  the  jury  thereon. 

AVe  have  gone  over  all  the  assignments  of  error  relating  to 
those  portions  of  the  recovery  other  than  for  seduction,  at  least 
so  far  as  seems  to  be  justified  by  their  importance,  and  find  none 
which  can  in  our  opinion  warrant  any  reversal  up  to  the  point 
of  the  recovery  of  damages  for  the  breach  of  promise  unaffected 
by  consideration  w^hether  the  seduction  of  the  plaintiff  was  ac- 
complished in  reliance  upon  the  promise  of  marriage.  When  the 
court  came  to  the  question  of  seduction,  he  instructed  the  jury 
that  if  they  found  it  they  should,  in  answer  to  the  ninth  question, 
fix  sucii  sum  as  will  compensate  her  for  the  additional  injuries 
resulting  from  the  seduction  which  would  include  loss  of  virtue, 
injury  to  reputation,  and  her  mental  suffering  following  from 
such  loss  and  such  injury,  and  this  too  after  directing  them  to 
include,  in  response  to  the  seventh  question,  the  amount  of  her 
damages  for  the  breach  of  the  promise  of  marriage  independent 
of  seduction,  the  elements  of  which  he  described  as  "benefits 
and  advantages  lost  to  her  by  the  defendant's  breach  of  the  con- 
tract, together  with  such  sum  as  will  compensate  her  for  such 
humiliation  and  mental  suffering  as  resulted  from  defendant's 
rejection  and  repudiation  of  her."  The  ninth  question  could 
have  been  no  broader  had  plaintiff  in  form  stated  tvv^o  causes  of 
action  in  her  complaint,  one  for  breach  of  promise,  and  another 
for  seduction  as  an  independent  cause  of  action.  But  by  the 
common  law,  which  has  received  no  modification  bv  statute  in 


564  BREACH  OF  PROMISE  TO  MARRY. 

Wisconsin,  though  it  has  in  some  states,  the  seduced  party  has 
no  cause  of  action  for  seduction.  She  is  a  consenting  party,  and 
the  policy  of  the  law  has  been  to  give  her  no  recovery,  no  matter 
how  her  consent  is  obtained,  for  seduction  as  such;  leaving  the 
seducer  to  be  dealt  with  under  the  criminal  law  when  he  is 
brought  within  its  terms.  In  the  two  cases  in  this  state,  which 
are  cited  as  authority  in  nearly  all  text  books,  Leavitt  v.  Cutler, 
37  Wis.  46,  and  Giese  v.  Schultz,  53  AVis.  462,  Id.  65  Wis.  487, 
and  Id.  69  Wis.  521,  this  view  was  most  distinctly  pointed  out, 
and  while  in  Leavitt  v.  Cutler  there  were  mentioned  as  elements 
of  damage  for  breach  of  promise  such  things  as  the  "loss  of 
virtue"  and  the  "injury  to  reputation,"  with  an  expressed  doubt 
whether  they  belonged  there,  it  was  declared  that  the  fact  of 
seduction  could  bring  in  no  additional  element  of  damage,  but  at 
most  might  serve  to  enhance  the  amount  of  those  elements  which, 
independently,  belonged  in  the  action  for  breach  of  promise. 
Just  what  those  elements  are,  and  whether  they  include  loss  of 
reputation,  is  left  in  doubt  by  the  Wisconsin  cases.  In  Coolidge 
V  Neafc,  129  Mass.  146,  they  are  defined  as  follows:  (1)  "The 
disappointment  of  the  plaintiff's  reasonable  expectations 
*  *  *  including  '  the  money  value  of  worldly  advantages  of  a 
marriage  which  would  have  given  her  a  permanent  home  and  an 
advantageous  establishment.'  "  (2)  "The  wound  and  injury  to 
her  affections. "  ( 3 )  "  Whatever  mortification  or  distress  of  mind 
she  suffered,  resulting  from  the  refusal  of  the  defendant  to  fulfill 
his  promise."  Whether  there  may  be  any  other  elements  is  im- 
material to  the  present  case,  for  the  trial  court  defined  the 
elements  for  which  damages  might  be  allowed  for  the  breach  of 
promise:  "The  benefits  and  advantages  lost  to  her  by  the  de- 
fendant 's  breach  of  the  contract,  together  with  such  sum  as  will 
compensate  her  for  such  humiliation  and  mental  suffering  as 
resulted  to  her  from  defendant's  rejection  and  repudiation  of 
her."  Now,  under  the  rule  of  Giese  v.  Schultz,  the  utmost  effect 
of  her  seduction  would  have  been  under  this  rule  of  the  trial 
court  to  enhance  the  sum  which  the  jury  might  have  thought 
would  compensate  her  for  one  or  the  other  of  these  elements, 
and,  obviously,  it  was  not  so  limited  by  the  instruction  given, 
which  authorized  compensation  for  the  "additional  injury  re- 
sulting from  seduction."  That  is  in  direct  disregard  of  the  rule 
of  this  court,  and  must  be  considered  error,  the  effect  of  which 


BREACH  OF  PROMISE  TO  MARRY.  565 

on  the  judgment,  however,  need  not  be  considered  by  reason  of  a 
more  radical  objection  now  to  be  stated. 

In  the  finding  (No.  8)  as  to  whether  or  not  seduction  had 
taken  place  the  court  left  to  the  jury  whether  the  plaintiff  had 
ever  had  sexual  intercourse,  otherwise  than  by  force  and  against 
her  will,  with  any  man  prior  to  the  promise  of  marriage.  He 
subsequently  concluded  that  this  was  too  restrictive,  and  declined 
to  set  the  verdict  aside,  although  not  supported  by  evidence  under 
that  rule,  holding  that  one  act  of  sexual  intercourse  could  not 
be  said  to  render  a  woman  unchaste.  This  opens  a  broad  field  of 
inquiry,  full  perhaps  of  close  distinctions.  But  the  general  rule 
of  law  seems  to  be,  from  the  weight  of  authority,  that  although  a 
woman  may  at  one  time  have  lapsed  from  physical  chastity,  if  it 
appear  affirmatively  that  she  has  reformed  and  at  the  time  of 
the  offense  maintained  a  habit  of  sexual  virtue,  she  may  be 
deemed  chaste  within  the  meaning  of  the  law,  so  that  an  invasion 
of  that  virtue  under  a  promise  of  marriage  may  serve  in  greater 
or  less  degree  to  enhance  the  damages  she  would  suffer  by  a 
breach.  Suther  v.  State,  118  Ala.  88;  Smith  v.  State,  118  Ala. 
117;  Smith  V.  Milburn,  17  Iowa,  30;  People  v.  Clark,  33  Mich. 
112;  People  V.  Squires,  49  ]\Iich.  487.  We  do  not,  however,  in 
the  present  case,  need  to  discuss  the  exact  lines  of  this  doctrine. 
If  it  appear  that  a  woman  has  willingly  associated  herself  in  the 
sexual  act  with  a  man  other  than  her  husband,  in  a  manner  and 
by  conduct  which  excludes  the  existence  of  any  barrier  of  virtue 
or  chastity  of  character  needing  to  be  overcome  by  seductive  arts, 
and  that  she  continued  such  intercourse  at  short  intervals  with- 
out suggestion  of  any  repentance  or  reformation  or  other  break 
in  its  continuity,  the  mere  fact  that  in  the  course  thereof,  and 
after  the  illicit  relations  are  established,  there  intervenes  a 
promise  of  marriage  cannot  support  a  finding  that  the  seduction 
has  been  accomplished  by  such  promise,  although  she  may  testif}^ 
that  she  continued  the  libidinous  relations  by  reason  of  it.  It  is 
seduction  by  promise  of  marriage  which  justifies  enhancement 
of  damages,  not  merely  sexual  intercourse.  The  latter  may  be 
the  result  of  inclination,  passion,  or  cupidity  without  entitling 
the  woman  to  any  reward  by  law.  People  v.  Clark.  33  IMich.  112 ; 
Patterson  v.  Hayden  17  Or.  238 ;  Bowers  v.  State,  29  Ohio  St. 
542;  State  v.  Brassfield,  81  Mo.  151  ;  Comer  v.  Taylor,  82  Mo. 
341;  Stowers  v.  Singer,  113  Ky.  584:  Hogan  v.  Cregan,  6  Rob 
(N.  Y.)  138.    In  the  present  case  it  is  established,  without  dis- 


566  BREACH  OF  PROMISE  TO  MARRY. 

pute,  that  on  at  loast  one  and  perhaps  two  occasions  the  plaintiflf 
and  defendant  associated  in  a  sexual  encounter  before  any  talk 
of  marriage.  The  circumstances  surrounding  the  first  of  these 
are  detailed  by  the  defendant,  and  show  a  most  ready  joining 
therein  by  the  plaintiff — true,  with  no  words  of  consent,  but  by 
acts  of  preparation  and  co-operation  which  are  fully  the  equiva- 
lent thereof  and  evincive  of  entire  familiarity  with  and  inclina- 
tion to  the  act.  This  testimony  stands  undisputed,  except  by  the 
plaintiff's  negative  answer  to  a  leading  question,  over  objection: 
"Did  you  ever  consent  to  allow  Mr.  Reinig  to  have  sexual  inter- 
course with  you  before  he  promised  to  marry  you?" — which  is 
far  too  much  a  mere  conclusion  of  the  witness  and  evasive  of  the 
real  facts  to  constitute  any  denial  of  the  specific  description  of 
her  conduct  given  by  the  defendant.  This  act  of  voluntary  and 
willing  intercourse  within  a  very  few  days  before  the  time  when 
it  is  claimed  the  promise  of  marriage  was  made,  and  the  entire 
resemblance  to  it  of  the  subsequent  conduct  of  the  plaintiff  in 
joining  with  the  defendant  in  sexual  intercourse,  none  of  which 
were  coincident  in  time  with  the  promise,  make  it  to  our  minds 
an  entirely  uncontradicted  fact  that  her  yielding  was  in  no  wise 
induced  by  or  dependent  on  the  promise  of  marriage,  and  that 
the  finding  of  the  jury  to  the  eighth  question  was  wholly  un- 
supported. The  court  should  upon  defendant's  motion,  have  re- 
versed the  answer  to  that  question,  or  indeed,  preferably,  should 
have  declined  to  submit  it  to  the  jury.  The  conclusion  thus 
reached  does  not  affect  the  rest  of  the  verdict.  The  error  of  the 
court  can  now  be  corrected  by  eliminating  from  the  recovery  all 
that  portion  which  depends  upon  the  answers  to  the  eighth  and 
ninth  questions. 

Judgment  modified  by  reducing  the  damages  to  the  sum  of 
$10,000,  and,  as  so  modified,  is  affirmed.  Appellant  to  recover 
costs  in  this  court. 


VIII.     ACTIONS  AGAINST  TELEGRAPH 
COMPANIES. 

PRIMROSE  V.  WESTERN  UNION  TELEGRAPH 
COMPANY. 

United  States  Supreme  Court,  1894.     154  U.  S.  1. 

This  was  an  action  on  the  case,  brought  Jan.  25, 1888,  by  Frank 
J.  Primrose,  a  citizen  of  Pennsylvania,  against  the  Western 
Union  Telegraph  Company,  a  corporation  of  New  York,  to  re- 
cover damages  for  a  negligent  mistake  of  the  defendant's  agent 
in  transmitting  a  telegraphic  message  from  the  plaintiff  at 
Philadelphia  to  his  agent  at  Waukeney  in  the  State  of  Kansas. 

The  defendant  pleaded:  1st,  not  guilty;  2d,  that  the  message 
was  an  unrepeated  message,  and  was  also  a  cipher  and  obscure 
message,  and  therefore  by  the  contract  between  the  parties  under 
which  the  message  was  sent  the  defendant  was  not  liable  for  the 
mistake.     *     *     * 

Gray,  J.  The  plaintiff  introduced  evidence  tending  to  show 
that  he  had  suffered  a  loss  of  upwards  of  $20,000.  *  *  *  Be- 
yond this,  under  any  contract  to  transmit  a  message  by  tele- 
graph, as  under  any  other  contract,  the  damages  for  a  breach 
must  be  limited  to  those  which  may  be  fairly  considered  as  aris- 
ing according  to  the  usual  course  of  things  from  the  breach  of 
the  very  contract  in  question,  or  which  both  parties  must  rea- 
sonably have  understood  and  contemplated,  when  making  the 
contract,  as  likely  to  result  from  its  breach.     This  was  directly 

adjudged  in  Western  Union  Tel.  Co.  v.  Hall,  124  U.  S.  444. 

*     *     * 

The  learned  justice  here  reviews  Hadley  v.  Baxendale  and 
continues  as  follows: 

In  Sanders  v.  Stuart,  which  was  an  action  by  commission 
merchants  against  a  person  whose  business  it  was  to  collect  and 
transmit  telegraph  messages,  for  neglect  to  transmit  a  message 
in  words  by  themselves  wholly  unintelligible,  but  which  could 
be  understood  by  the  plaintiffs'  correspondent  in  New  York  as 

567 


568  ACTIONS  AGAINST  TELEGRAP]!   CO.MPANIES. 

giving  a  large  order  for  goods,  whereby  the  phwutilfs  lost  profits, 
whieh  they  would  otherwise  linve  made  by  the  transaetion,  to 
the  ainoimt  of  £150,  Lord  Chief  Justice  Coleridge,  speaking  for 
himself  and  Lords  Justices  Brett  and  Lindley,  said:  "Upon 
the  facts  of  this  ease  we  think  that  the  rule  in  Hadley  v.  Baxen- 
dale  applies,  and  that  the  damages  recoverable  are  nominal  only. 
It  is  not  necessary  to  decide,  and  we  do  not  give  any  opinion 
how  the  case  might  be,  if  the  message,  instead  of  being  in  lan- 
guage utterly  unintelligible,  had  been  conveyed  in  plain  and  in- 
telligible words.  It  was  conveyed  in  terms  which,  as  far  as  the 
defendant  was  concerned,  w^ere  simple  nonsense.  For  this  reason, 
the  second  portion  of  Baron  Alderson's  rule  clearly  applies.  No 
such  damages  as  above  mentioned  could  be  'reasonably  supposed 
to  have  been  in  the  contemplation  of  both  parties,  at  the  time 
they  made  the  contract,  as  the  probable  result  of  the  breach 
of  it ; '  for  the  simple  reason  that  the  defendant,  at  least,  did 
not  know  what  his  contract  w^as  about,  nor  what,  nor  whether 
any,  damage  would  follow  from  the  breach  of  it.  And  for  the 
same  reason,  viz.,  the  total  ignorance  of  the  defendant  as  to  the 
subject-matter  of  the  contract  (an  ignorance  knowTi  to,  and,  in- 
deed, intentionally  procured  by  the  plaintiffs),  the  first  portion 
of  the  rule  applies  also;  for  there  are  no  damages  more  than 
nominal  which  can  '  fairly  and  reasonably  be  considered  as  arising 
naturally,  i.  e.,  according  to  the  usual  course  of  things,  from  the 
breach'  of  such  a  contract  as  this. "  1  C.  P.  D.  326,  328  ;  45  Law 
Journal  (N.  S.)  C.  P.  682,  684. 

In  United  States  Telegraph  Company  v.  Gildersleve,  which 
was  an  action  by  the  sender  against  a  telegraph  company  for 
not  delivering  this  message  received  by  it  in  Baltimore,  addressed 
to  brokers  in  New  York,  "Sell  fifty  (50)  gold,"  Mr.  Justice 
Alvey,  speaking  for  the  Court  of  Appeals  of  Maryland,  and 
applying  the  rule  of  Hadley  v.  Baxendale,  above  cited,  said: 
"While  it  was  proved  that  the  despatch  in  question  would  be  un- 
derstood among  brokers  to  mean  fifty  thousand  dollars  of  gold, 
it  was  not  shown,  nor  was  it  put  to  the  jury  to  find,  that  the  ap- 
pellant's agents  so  understood  it,  or  whether  they  understood  it 
at  all.  'Sell  fifty  gold'  may  have  been  understood  in  its  literal 
import,  if  it  can  be  properly  said  to  have  any,  or  was  as  likely 
to  be  taken  to  mean  fifty  dollars,  as  fifty  thousand  dollars,  by 
those  not  initiated.  And  if  the  measure  of  responsibility  at  all 
depends  upon  a  knowledge  of  the  special  circumstances  of  the 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.  569 

ease,  it  would  certainly  follow  that  the  nature  of  this  despatch 
should  have  been  communicated  to  the  agent  at  the  time  it  was 
offered  to  be  sent,  in  order  that  the  appellant  might  have  ob- 
served the  precautions  necessary  to  guard  itself  against  the  risk. 
But  without  reference  to  the  fact  as  to  whether  the  appellant 
had  knowledge  of  the  true  meaning  and  character  of  the  despatch, 
and  was  thus  enabled  to  contemplate  the  consequences  of  a  breach 
of  the  contract,  the  jury  were  instructed  that  the  appellee  was 
entitled  to  recover  to  the  full  extent  of  his  loss  by  the  decline  in 
gold.  In  thus  instructing  the  jury,  we  think  the  court  committed 
error,  and  that  its  ruling  should  be  reversed."  29  Maryland, 
232,  251. 

In  Baldwin  v.  United  States  Tel.  Co..  which  was  an  action 
by  the  senders  against  the  telegraph  company,  for  not  deliver- 
ing this  message,  "Telegraph  me  at  Rochester  what  that  well  is 
doing,"  Mr.  Justice  Allen,  speaking  for  the  Court  of  Appeals  of 
New  York  said :  ' '  The  message  did  not  import  that  a  sale  of  any 
property,  or  any  business  transaction,  hinged  upon  the  prompt 
delivery  of  it,  or  upon  any  answer  that  might  be  received.  For 
all  the  purposes  for  which  the  plaintiffs  desired  the  informa- 
tion, the  message  might  as  well  have  been  in  a  cipher,  or  in  an 
unknown  tongue.  It  indicated  nothing  to  put  the  defendant  upon 
the  alert,  or  from  which  it  could  be  inferred  that  any  special 
or  peculiar  loss  would  ensue  from  a  non-delivery  of  it.  When- 
ever special  or  extraordinary  damages,  such  as  would  not  natural- 
ly or  ordinarily  follow  a  breach,  have  been  awarded  for  the  non- 
performance of  contracts,  w^hether  for  the  sale  or  carriage  of 
goods,  or  for  the  delivery  of  messages  by  telegraph,  it  has  been 
for  the  reason  that  the  contracts  have  been  made  with  reference 
to  peculiar  circumstances  known  to  both,  and  the  particular 
loss  has  been  in  the  contemplation  of  both,  at  the  time  of  making 
the  contract,  as  a  contingency  that  might  follow  the  non-per- 
formance." "The  despatch  not  indicating  any  purpose  other 
than  that  of  obtaining  such  information  as  an  o^Tier  of  property 
might  desire  to  have  at  all  times  and  without  reference  to  a 
sale,  or  even  a  stranger  might  ask  for  purposes  entirely  foreign 
to  the  property  itself,  it  is  very  evident  that,  whatever  may  have 
been  the  special  purpose  of  the  plaintiffs,  the  defendant  had  no 
knowledge  or  means  of  knowledge  of  it,  and  could  not  have  con- 
templated either  a  loss  of  a  sale,  or  a  sale  at  an  under  value,  or 
any  other  disposition  of  or  dealing  with  the  well  or  any  other 


570  ACTIONS  AGAINST  TELEOKAPII  COMPANIES. 

property,  as  the  probable  or  possible  result  of  a  breach  of  its  con- 
tract. The  loss  which  would,  naturally  and  necessarily,  result 
from  the  failure  to  deliver  the  message,  would  be  the  money  paid 
for  its  transmission,  ami  no  other  damages  can  be  claimed  upon 
the  evidence  as  resulting  from  the  alleged  breach  of  duty  by 
the  defendant."  45  N.  Y.  744,  749,  750,  752.  See  also  Hart  v. 
Direct  Cable  Co.,  86  N.  Y.  G33. 

The  Supreme  Court  of  Ilinois,  in  Tyler  v.  Western  Union  Tel. 
Co.,  took  notice  of  the  fact  that  in  that  case  "the  despatch  dis- 
closed the  nature  of  the  business  as  fully  as  the  case  demanded." 
60  Illinois,  434.  And  in  the  recent  case  of  Postal  Tel.  Co.  v. 
Lathrop,  the  same  court  said:  "It  is  clear  enough  that,  apply- 
ing the  rule  in  Hadley  v.  Baxendale,  supra,  a  recovery  cannot  be 
had  for  a  failure  to  correctly  transmit  a  mere  cipher  despatch 
unexplained,  for  the  reason  that  to  one  unacquainted  with  the 
meaning  of  the  ciphers  it  is  wholly  unintelligible  and  nonsensical. 
An  operator  w^ould,  therefore,  be  justifiable  in  saying  that  it  can 
contain  no  information  of  value  as  pertaining  to  a  business 
transaction;  and  a  failure  to  send  it,  or  a  mistake  in  its  trans- 
mission, can  reasonably  result  in  no  pecuniary  loss."  131  Illinois, 
575,  585. 

The  same  rule  of  damages  has  been  applied,  upon  failure  of  a 
telegraph  company  to  transmit  or  deliver  a  cipher  message,  in 
one  of  the  Wisconsin  cases  cited  by  the  plaintiff,  and  in  many 
cases  in  other  courts.    (Citing  authorities.) 

In  the  present  case,  the  message  was,  and  was  evidently  in- 
tended to  be,  wholly  unintelligible  to  the  telegraph  company  or 
its  agents.  They  were  not  informed,  by  the  message  or  other- 
wise, of  the  nature,  importance,  or  extent  of  the  transaction  to 
which  it  related,  or  of  the  position  which  the  plaintiff  would 
probably  occupy  if  the  message  were  correctly  transmitted.  Mere 
knowledge  that  the  plaintiff  was  a  wool  merchant,  and  that  To- 
land  was  in  his  employ,  had  no  tendency  to  show  what  the 
message  was  about.  According  to  any  understanding  which  the 
telegraph  company  and  its  agents  had,  or  which  the  plaintiff 
could  possibly  have  supposed  that  they  had,  of  the  contract 
between  these  parties,  the  damages  which  the  plaintiff  seeks  to  re- 
cover in  this  action,  for  losses  upon  wool  purchased  by  Toland, 
were  not  such  as  could  reasonably  be  considered,  either  as  aris- 
ing, according  to  the  usual  course  of  things,  from  the  supposed 
breach  of  the  contract  itself,  or  as  having  been  in  the  eontempla- 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.         571 

tion  of  both  parties,  when  they  made  the  contract,  as  a  probable 
result  of  a  breach  of  it. 

In  any  view  of  the  case,  therefore,  it  was  rightly  ruled  by  the 
Circuit  Court  that  the  plaintiff  could  recover  in  this  action  no 
more  than  the  sum  which  he  had  paid  for  sending  the  message. 

Judgment  affirmed. 

Mr.  Chief  Justice  Fuller,  and  Mr.  Justice  Harlan,  dis- 
isented. 


McPEEK  V.  WESTERN  UNION  TELEGRAPH  CO. 
Iowa,  1899.    107  Iowa,  356. 

Ladd,  J.  September  20,  1896,  after  mortally  wounding  John 
Finley,  the  marshal  of  Morning  Sun,  Orman  McPherson  fled.  A 
few  days  later  the  plaintiff  saw  his  wife,  who  promised  to  assist 
him  in  procuring  the  arrest  of  her  husband.  McPeek  obtained 
McPherson 's  pension  papers  from  Keithsburg,  111.,  for  her;  and 
she  advised  him  (being  in  secret  correspondence  under  an  as- 
sumed name)  of  having  these,  and  he  came  to  her  room  at  the 
hotel  at  Morning  Sun,  where  she  was  employed  as  cook,  October 
22,  1896,  at  about  10  o'clock  p.  m.  (having  so  arranged  earlier  in 
the  evening),  and  there  remained  until  between  3  and  4  o'clock 
the  following  morning.  Before  coming  in,  he  gave  up  his  re- 
volvers, and  she  placed  them  in  a  bureau,  where  they  remained 
during  his  stay.  She  had  agreed  to  write  to  McPeek  when  she 
expected  her  husband,  but,  if  he  came  unexpectedly,  then  to  tele- 
graph him.  At  about  7  o'clock  p.  m.  of  the  22d,  she  delivered  to 
the  defendant's  agent  at  Morning  Sun  this  telegram:  "E.  E. 
McPeek,  Winfield:  Come  on  first  train.  Answer.  M.  E.  M. — " 
telling  him  she  wanted  it  "sent  right  away  and  delivered  and 
wanted  an  answer."     *     *     * 

Ridgway,  the  agent  at  Winfield,  usually  closed  his  office  at  6 
o'clock,  but  was  ordinarily  at  the  station  at  about  9  o'clock. 
He  received  the  message  at  9: 15  o'clock  p.  m.,  and  carried  it  to 
the  plaintiff's  house,  reaching  there  at  about  9:30.  After  re- 
peatedly rapping  on  the  door,  and  being  unable  to  arouse  anyone, 
as  he  says,  he  placed  the  message  over  the  door  knob,  with  the 
end  of  the  envelope  between  the  door  and  the  jamb,  where  it 
was  found  the  next  day  at  between  9  and  10  o'clock  a.  m.  It 
seems  the  agent  supposed  the  family  was  away  from  home  and 


572         ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

would  find  it  upon  their  return.  *  *  *  Tlie  only  train 
*  *  *  leaving  Wintield  for  Morning  Sim  *  *  *  left  the 
former  place  at  6  o'clock  a.  m.  McPeek  told  Ridgway  he  was 
making  an  effort  to  capture  I\IcPherson,  and  might  get  a  telegram 
from  ^lorning  Sun  concerning  the  matter.     *     *     * 

On  the  21st  day  of  October,  1896,  the  governor  of  Iowa,  by 
proclamation,  offered  a  reward  of  three  hundred  dollars  for  the 
arrest  of  ^IcPiierson,  and  his  delivery  to  the  proper  authorities. 
The  plaintift"s  action  is  based  on  the  allegation  that  he  lost  this 
reward  througli  tlie  negligence  of  the  defendant  in  not  delivering 
the  message  on  the  evening  of  October  22d.     *     *     * 

III.  It  is  insisted  that  the  damages  were  remote,  and  not  such 
as  either  party  might  have  contemplated  from  the  wording  of 
the  message.  But  extrinsic  evidence  was  admissible  to  show  that 
defendant  had  notice  of  the  importance  of  the  message.  Cable 
Co.  V.  Lathrop,  131  111.  575  (23  N.  E.  583),  Telegraph  Co.  v. 
Edsall,  74  Tex.  329.  The  appellant  argues  the  case  on  the  theory 
that  the  action  of  plaintiff  is  for  the  breach  of  contract.  He 
made  no  contract  with  the  defendant.  This  is  conceded  by  ap- 
pellant in  its  opening  argument,  and  denied  in  its  reply.  The 
first  impression  was  undoubtedly  the  correct  one.  The  contract 
was  with  the  sender  of  the  message,  and  whether  recovery  might 
be  had  for  breach  thereof,  because  made  for  plaintiff's  benefit, 
we  need  not  determine.  This  action  is  based  on  the  negligence 
of  the  defendant  in  the  performance  of  a  duty  in  its  public 
capacity  as  a  common  carrier  of  messages.  In  all  such  actions, 
sounding  in  tort,  the  injured  party  is  not  limited  to  damages 
which  might  reasonably  have  been  within  the  contemplation  of 
the  parties,  but  recovery  may  be  had  "for  all  the  injurious  results 
which  flow  therefrom,  by  ordinary  natural  sequence,  without  the 
interposition  of  any  other  negligent  act  or  overpowering  force." 
Mentzer  v.  Telegraph  Co.,  93  loAva,  757.  [Here  the  learned  jus- 
tice cites  many  authorities.] 

There  was  evidence  tending  to  show  that  immediate  delivery 
was  requested  and  that  the  agent  at  Winfield  knew  that  McPeek 
was  expecting  a  message,  that  it  would  relate  to  the  capture  of 
McPherson,  and  that  prompt  delivery  was  required.  If  so,  while 
he  may  not  have  knowTi  of  the  reward  being  offered,  he  may  well 
be  credited  with  understanding  that  McPeek  was  putting  forth 
his  efforts  to  accomplish  a  purpose  from  which  he  anticipated 
some  benefit  to  accrue  to  himself.     The  law  authorizes  the  offer- 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.         573 

ing  of  such  rewards,  and  it  is  not  too  strict  a  rule  to  hold  the  de- 
fendant responsible  for  such  losses  as  may  reasonably  be  an- 
ticipated to  follow  its  negligence,  whether  informed  definitely 
what  these  may  be  or  not.  It  was  charged  with  knowledge  that 
such  a  reward  might  be  made,  and  it  might  reasonablj^  reckon  on 
such  a  contingency,  in  omitting  its  duty  with  reference  to  such  a 
message.  Nor  was  the  plaintiff  advised  that  the  reward  had 
actually  been  offered  on  October  22d,  though  he  understood  it 
would  be,  and  was  acting  to  secure  this  and  others  proposed  by 
local  officers.  That  the  omission  of  the  defendant  caused  greater 
loss  than  he  then  supposed,  does  not  affect  its  liability,  or  his 
right  of  recovery.  Certainly  the  loss  of  the  reward  was  the 
direct  result  of  the  failure  to  arrest  and  deliver  McPherson 
to  the  proper  authorities,  for  this  was  the  very  condition  of  its 
payment. 

IV.  The  burden  was  on  the  plaintiff  to  prove  that  in  all  reason- 
able probability  the  loss  resulted  from  the  negligence  of  the  de- 
fendant. Hendershott  v.  Telegraph  Co.,  106  Iowa,  529.  Had 
the  plaintiff  proceeded  by  team  to  IMorning  Sun,  with  the  as- 
sistance of  the  two  constables  and  another,  there  seems  no  good 
reason  to  doubt  that  he  would  have  arrested  IMcPherson,  who  had 
been  disarmed  by  his  wife.  This  is  not  absolutely  certain,  for 
many  contingencies  may  be  supposed,  which  could  have  inter- 
vened. While  these  might  well  be  considered,  they  do  not  war- 
rant us  in  sajnng  that  these  men  would  not  have  accomplished 
that  which  has  often  been  done  before,  and  which  is  ordinarily 
done  by  officers  in  like  situation.  Whether  they  would  in  all 
probability  have  succeeded,  was  for  the  jury  to  determine. 

V.  It  is  suggested  that  as  the  train  did  not  go  until  6 :  06  in 
the  morning,  even  if  the  message  had  been  delivered  the  plaintiff 
could  not  have  reached  Morning  Sun  in  time  to  make  the  arrest. 
But  the  plaintiff  had  made  every  arrangement  to  go  by  team. 
The  message  was  understood  by  the  plaintiff  to  require  imme- 
diate attention  owing  to  his  agreement  with  Mrs.  McPherson. 
«     *     * 

We  discern  no  error  in  the  record,  and  the  judgment  must  be 
aflSrmed. 


574  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

WESTERN  UNION  TELEGRAPH  CO.  v.  NYE. 

Nebraska.  1903.     70  Xeb.  :>51. 

Albert,  C.  This  action  was  brought  by  the  Nye  &  Schneider 
Company  against  the  Western  Union  Telegraph  Company  to  re- 
cover damages  sustained  by  the  former  by  reason  of  the  negli- 
gent dehiy  of  the  hitter  in  transmitting  a  telegram.  It  sufficiently 
appears  from  the  pleadings  and  the  evidence  that  the  plaintiff, 
whose  home  office  is  at  Fremont,  had  a  branch  office  at  More- 
head,  Iowa,  where  it  was  engaged  in  the  grain  business.  On  the 
13th  day  of  June,  1901,  plaintiff's  agent  in  charge  of  the  business 
at  the  latter  place  had  a  cash  offer  of  35  cents  per  bushel  for 
5,000  bushels  of  corn,  which  the  plaintiff  had  on  hand  at  that 
point,  which  was  to  stand  open  for  acceptance  until  7 :  30  p.  m. 
of  that  day.  The  agent  communicated  the  offer  to  the  plaintiff  at 
its  home  office.  On  receipt  of  such  communication,  the  plaintiff, 
on  the  same  day,  delivered  a  message  to  the  defendant,  for  trans- 
mission to  the  agent  of  the  former  at  Morehead,  Iowa,  directing 
him  to  accept  the  offer.  Had  the  defendant  used  due  diligence 
in  the  transmission  of  the  message,  it  would  have  reached  the 
agent  in  time  to  enable  him  to  take  advantage  of  the  offer  and 
close  the  sale  before  the  time  for  which  the  offer  was  to  hold  good 
expired.  But  by  reason  of  the  negligent  delay  in  the  transmis- 
sion, it  did  not  reach  him  until  after  7  :30  of  that  day,  in  con- 
sequence whereof  the  plaintiff  failed  to  make  the  sale.  Had  the 
offer  been  accepted  within  the  time  fixed,  the  party  making  the 
offer  would  have  paid  the  price  in  cash,  and  the  corn  would  have 
been  delivered  to  him  at  Morehead.  The  market  value  of  the 
corn  on  that  day,  and  for  sometime  thereafter,  was  32  cents  per 
bushel.  Afterward  the  price  advanced,  so  that,  between  the  24th 
day  of  June  and  the  5th  day  of  November  following,  the  plaintiff 
disposed  of  the  corn  at  retail  at  a  higher  price  than  that  specified 
in  the  offer  hereinbefore  mentioned.  A  trial  to  the  court  without 
a  jury  resulted  in  a  finding  for  the  plaintiff ;  the  court  adopting 
as  the  measure  of  damages  the  dift'erence  between  the  price  offered 
for  the  com  on  the  13th  day  of  June,  1901,  and  its  market  value 
at  IMorehead  on  that  day,  and  gave  judgment  accordingly.  The 
defendant  brings  error. 

The  defendant  contends  that  the  measure  of  damages  adopted 
by  the  trial  court  is  erroneous,  as  applied  to  the  facts  in  this 
ease,  because  the  plaintiff,  having  eventually  sold  the  com  at  a 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.  575 

higher  price  than  that  accepted  by  the  message  in  question 
suffered  no  loss,  and  therefore  sustained  no  actual  damages,  by 
reason  of  the  delay  in  the  delivery  of  the  message.  At  first  sight 
this  contention  appears  reasonable,  but  we  do  not  believe  it  will 
bear  analysis.  The  action  is  one  for  breach  of  contract,  and  the 
breach  relied  upon  is  the  failure  of  the  defendant  to  transmit 
and  deliver  the  message  within  what,  under  all  the  circumstances, 
would  have  been  a  reasonable  time.  In  such  cases  the  general 
rule  is  that,  so  far  as  it  can  be  done  by  money,  the  injured  party 
is  to  be  placed  in  the  same  situation  in  which  a  performance  of 
the  contract  would  have  placed  him.  But  it  would  be  impossible 
to  follow  the  labyrinth  of  remote  results  and  consequences  of  a 
breach  of  contract,  and  determine  either  the  ultimate  situation 
of  the  party  as  affected  thereby,  or  what  such  situation  would 
have  been,  had  the  contract  been  performed.  The  law,  there- 
fore, takes  into  account  only  approximate  results,  and  disregards 
such  as  are  remote,  or  are  the  product  of  intervening  or  inde- 
pendent causes.  Hence  the  situation  of  the  injured  party  which 
forms  the  basis  of  the  comparison  must  be  his  situation  when  the 
breach  of  contract  occurred,  and  before  remote  or  independent 
causes  had  intervened  to  change  it.  His  situation  after  that 
time  can  never  be  material  as  an  ultimate  fact  in  the  case,  be- 
cause, after  the  intervention  of  such  causes,  it  can  never  be  known 
with  any  reasonable  degree  of  certainty  to  what  extent  it  is  due 
to  causes  only  remotely  connected  with  the  breach  of  contract, 
or  wholly  independent  of  it.  In  the  present  case,  although  it  is 
questioned  by  the  defendant,  we  think  the  evidence  is  ample  to 
sustain  a  finding  that  the  delivery  of  the  corn  and  the  payment 
of  price  would  have  followed  immediately  upon  the  delivery  of 
the  message,  had  it  been  delivered  in  due  time.  Hence,  upon  the 
failure  to  deliver  the  message,  the  plaintiff  has  5,000  bushels  of 
com,  which,  instead  of  being  worth  $1,750,  as  it  would  have  been, 
had  the  message  been  duly  delivered,  was  worth  only  $1,600. 
In  other  words,  the  plaintiff's  situation,  upon  the  defendant's 
failure  to  deliver  the  message,  and  before  any  remote  or  inde- 
pendent causes  had  intervened  to  change  it, ,  was  such  that  it 
would  have  required  $150  to  make  what  it  would  have  been,  had 
the  message  been  delivered.  The  subsequent  rise  in  the  market, 
and  sale  of  the  com  on  such  market,  are  no  more  proximate  re- 
sults of  the  breach  of  contract  or  the  contractual  relations  of  the 
parties  than  a  subsequent  decline  in  the  market,  and  sale  of  the 


576  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

corn  at  a  loss,  would  have  been.  The  same  principle  that  would 
have  relieved  the  dei'eudant  from  increased  liability,  had  the 
market  declined,  excludes  it  from  participation  in  the  profits 
resulting"  from  its  advances.  In  neither  ease  would  it  be  possible 
to  determine  to  what  extent  the  result  was  due  to  the  interven- 
tion of  remote  or  independent  causes. 

Besides,  as  a  matter  of  pure  justice  between  the  parties,  we  are 
satisfied  that  the  rule  adopted  by  the  trial  court  is  right.  Had 
the  plaintiff,  immediately  upon  the  failure  to  deliver  the  message, 
sold  the  corn  at  the  then  market  price,  the  measure  of  damages, 
in  the  absence  of  special  circumstances,  would  have  undoubtedly 
been  the  difference  between  such  price  and  what  the  plaintiff 
would  have  received  for  it  had  the  message  been  delivered  in  due 
time.  Every  hour  it  held  the  corn  after  the  cause  of  action  arose 
was  at  is  own  risk,  because  it  will  not  be  claimed  that  the  damages 
recoverable  would  have  been  increased  by  the  loss  or  destruction 
of  the  corn  or  its  decline  in  price  after  that  time.  Those  are 
risks  incident  to  the  business  of  the  merchant,  and  which  he  takes 
into  account  in  estimating  his  profits  and  deciding  upon  a  cause 
of  action.  Holding  the  corn  for  a  better  market  also  involved 
interest  on  the  capital  invested,  storage,  the  negotiations  of 
another  sale,  and  other  outlays,  to  say  nothing  of  the  foresight 
and  energy  necessary  to  conduct  the  venture  to  a  successful  issue. 
Is  there  any  good  reason  why  the  defendant,  who  risked  nothing, 
invested  nothing,  and  did  nothing  in  the  venture,  should  be  per- 
mitted to  share  in  the  profits?  We  think  not.  We  are  aware 
that  a  different  conclusion  was  reached  in  Houston  E.  &  Tel.  Co. 
V.  Davids-on  (Tex.  Civ.  App.),  cited  by  defendant;  but  it  is  not 
supported  by  any  line  of  reasoning,  nor  is  it  entirely  clear  that 
the  point  was  necessarily  involved  in  the  case.  But  however 
that  may  be,  it  does  not  commend  itself  to  us  as  a  sound  rule  of 
law,  and  we  must  therefore  decline  to  follow  it.  The  defendant 
also  cites  Michalwait  v.  AVestern  Union  Tel.  Co.  (Iowa)  84  N.  W. 
1038.  In  that  case  a  buyer  delivered  a  message  to  the  defendant, 
a  telegraph  company,  for  transmission  to  the  plaintiff,  which 
contained  an  offer  to  pay  2OV2  cents  per  bushel  for  corn.  Through 
a  mistake  of  the  defendant,  the  message,  when  delivered  to  the 
plaintiff,  read  2114  cents  per  bushel.  On  receipt  of  the  message 
the  plaintiff  went  into  the  market  and  filled  the  order,  paying 
21  cents  per  bushel  for  a  part  of  the  corn,  and  20  cents  for  the 
balance.     The  purchaser  refused  to  pay  more  than  201/^  cents 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.         577 

per  bushel  for  the  corn,  and  it  was  delivered  to  him  at  that  price. 
In  passing  on  the  case,  Waterman,  J.,  said:  "Plaintiffs  claim 
a  loss  of  profits.  If  this  were  a  case  where  loss  of  profits  iiiiglit 
be  considered,  still  we  think  they  could  not  recover.  The  mis- 
take in  the  message  caused  them  no  loss  of  profits,  for,  if  it  had 
been  correctly  transmitted,  they  would  have  been  in  the  same 
situation  they  now  are.  They  obtain  from  Russell  the  exact 
price  fixed  in  his  message,  and  as  it  should  have  been  sent.  There 
is  no  showing  that  the  work  of  procuring  the  corn  was  worth 
more  than  the  margin  of  profit  received."  "We  think  that  case 
is  clearly  distinguishable  from  the  one  at  bar,  and  is  not  in 
point.  In  that  case  there  was  nothing  to  show  that  the  plaintiffs 
would  have  been  in  any  better  position,  had  the  message  been 
correctly  transmitted.  It  does  not  appear  that  they  paid  any 
more  for  the  com  to  fill  the  order  by  reason  of  the  mistake,  nor 
that  by  reason  of  the  mistake  they  did  anything  they  would  not 
have  done,  had  it  not  occurred.  Hibbard  v.  Western  Union  Tel. 
Co.,  33  Wis.  558,  is  another  case  cited  by  the  defendant.  The 
reasoning  in  that  case  seems  to  us  to  tell  against  the  defendant, 
and  to  support  the  conclusion  heretofore  reached  by  us  in  the 
present  case.  The  same  may  be  said  of  Western  Union  Tel. 
Co.  V.  Hall,  124  U.  S.  144,  and  Squire  v.  Western  Union  Tel.  Co., 
98  Mass.  232. 

But  the  defendant  further  contends  that  the  plaintiff  did  not 
learn  of  the  failure  of  the  sale  by  reason  of  the  non-delivery 
of  the  message  until  some  three  days  more  thereafter,  and  that, 
under  such  circumstances,  it  was  necessary  for  the  plaintiff  to 
show  the  value  of  the  corn  at  the  time  it  learned  that  the  sale 
had  thus  failed.  In  support  of  this  contention  the  Texas  case 
above  referred  to  is  again  cited.  We  do  not  deem  it  necessary 
in  this  case  to  determine  whether  the  rule  hereinbefore  approved 
would  be  affected  by  such  circumstances,  because,  were  we  to 
adopt  the  modification  suggested,  the  result  in  this  case  would 
be  precisely  the  same.  The  plaintiff  is  a  corporation,  and  acts 
only  through  its  agents.  Its  agent  at  Morehead,  through  whom 
the  negotiations  for  the  proposed  sale  were  conducted,  the  moment 
the  message  was  not  delivered  within  the  required  time,  knew 
that  the  snle  had  failed.  What  he  knew,  the  plaintiff  knew. 
Hence  the  fjiilure  of  the  salo,  and  knowledge  on  the  part  of  the 
plaintiff  that  it  had  failed,  were  contemporaneous,  and  the  mar- 

37 


578  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

kot  price  of  the  com  when  the  sale  failed,  and  when  the  plaintiff 
lenrued  that  it  had  failed,  would  be  the  same. 

It  is  therefore  recommended  that  the  judgment  of  the  district 
court  be  affirmed. 

Per  Curiam.     For  the  reasons  stated  in  the  foregoing  opinion, 
the  judgment  of  the  district  court  is  affirmed. 

DuFFiE,  C.  (concurring).  I  fully  concur  in  the  opinion  of 
Judge  Albert,  heretofore  filed  in  this  case.  The  facts  are 
sufficiently  set  forth  in  his  opinion.  It  is  earnestly  insisted  by 
the  plaintiff  in  error  that,  because  the  Nye-Schneider  Company 
finally  succeeded  in  disposing  of  its  corn  at  an  advantage  over 
the  offer  made  by  the  proposed  purchaser,  it  was  not  damaged 
by  the  failure  of  the  defendant  in  error  to  transmit  and  deliver 
the  message  accepting  the  offer.  On  the  contrary,  it  is  said  that 
the  Nye-Schneider  Company  profited  by  the  neglect  of  the 
plaintiff  in  error,  and  was  benefited  thereby.  It  has  also  been 
suggested  that,  before  the  defendant  in  error  could  recover,  it 
should  have  disposed  of  the  corn  on  the  market  at  the  best  price 
which  could  be  obtained,  and  that,  until  such  sale  was  made, 
no  cause  of  action  accrued  to  it.  I  am  not  disposed  to  accept 
these  views.  Had  the  message  accepting  the  offer  been  promptly 
delivered,  a  sale  of  the  corn  at  a  price  IY2  cents  above  the  market 
value  would  have  been  consummated  on  the  evening  of  June  13, 
1901.  A  failure  to  deliver  the  message  prevented  the  sale,  and 
the  consequence  was  that  the  defendant  in  error  had  on  hand 
5,000  bushels  of  corn,  which  would  otherwise  have  been  dis- 
posed of  at  a  profit  of  $75  above  the  market  price  at  that  date. 
It  is  clear,  therefore,  that  on  the  evening  of  June  13th  it  had 
been  damaged  to  the  extent  of  $75.  A  right  of  action  accrued 
to  it  immediately  for  this  amount.  We  know  of  no  principle 
which  would  deprive  it  of  this  right  of  action,  or  which  would 
give  the  plaintiff  in  error  the  benefit  of  a  rise  in  the  com  market, , 
or  allow  such  advance  to  be  shown  in  mitigation  of  damages.  The 
rule  is  aptly  stated  by  Sutherland  in  his  work  on  Damages 
(volume  1,  p.  242),  where  it  is  said :  "There  can  be  no  abatement 
of  damages  on  the  principle  of  partial  compensation  received  for 
the  injury,  where  it  comes  from  a  collateral  source,  wholly  inde- 
pendent of  the  defendant,  and  is  as  to  him  res  inter  alios  acta." 
There  appears  to  be  a  dearth  of  authorities  on  the  exact  question 
involved,  but,  in  my  opinion,  the  same  principle  and  the  same 
measure  of  damage  should  be  applied  that  obtain  in  the  ease  of  a 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.         579 

purchaser  of  personal  property  who  refuses  to  accept  the  goods 
purchased  at  the  time  lixed  for  the  delivery.  In  such  case  the 
authorities  all  agree  that  a  right  of  action  for  damges  arises  in 
favor  of  the  vendor  for  the  injury  or  loss  he  has  sustained  by 
reason  of  the  breach  of  the  contract,  and  this  is  ordinarily  or 
generally  the  difference  between  the  market  value  of  the  property 
at  the  time  and  place  of  delivery  and  the  price  fixed  by  the  con- 
tract. Funke  v.  Allen,  54  Neb.  407 ;  Lincoln  Shoe  Mfg.  Co.  v. 
Sheldon,  44  Neb.  279.  It  is  true  that  the  vendor,  on  refusal  of 
the  vendee  to  accept,  has  a  right,  if  he  so  elects,  to  resell  the 
goods;  but  this  seems  to  be  a  method  only  of  ascertaining  their 
market  value,  and  the  extent  of  the  damages.  Sutherland,  in  his 
work,  has  given  the  rule  established  by  the  decided  cases,  as  fol- 
low^s:  "An  executory  agreement  which  requires  a  subsequent 
acceptance  of  the  property  by  the  buyer  to  consummate  the  sale 
does  not  become  a  complete  bargain  and  sale,  so  as  to  vest  the 
title  in  him,  if  he  refuses  to  take  the  goods.  In  such  case  the 
vendor  is  entitled  to  recover  damages  only  to  the  extent  of  his 
actual  injury  from  the  failure  of  the  vendee  to  fulfill  his  con- 
tract, which  is  ordinarily  the  difference  between  the  contract 
price  and  the  market  value  at  the  time  and  place  of  the  breach, 
with  interest.  This  may  be  ascertained  and  fixed  by  a  resale 
within  a  reasonable  time,  and  after  notice  to  the  vendee  of  the 
vendor's  intention  to  resell,  taking  all  proper  measures  to  secure 
as  fair  and  favorable  a  sale  as  possible.  Such  resale  is  made 
on  the  theory  that  the  property  is  that  of  the  vendee,  retained  by 
the  vendor  as  a  means  of  realizing  the  contract  price.  He  acts  as 
the  agent  of  the  vendee,  and  deducts  from  the  proceeds  all  the 
expenses  incurred.  After  notice  of  the  vendor's  intention  to  re- 
sell, no  notice  of  the  time  and  place  of  the  resale  is  required  to  be 
given,  but  it  must  be  made  according  to  the  usage  of  trade.  If 
the  net  proceeds  of  the  trade  are  less  than  the  contract  price,  he 
may  recover,  by  action  on  the  contract,  the  deficiency."  Benja- 
min, Sales,  §  758,  says:  "When  the  vendor  has  not  transferred 
to  the  buyer  the  property  in  the  goods  which  are  the  subject  of 
the  contract,  as  has  been  explained  in  book  2,  as  where  the  agree- 
ment is  for  the  sale  of  goods  not  specific,  or  of  specific  goods 
which  are  not  in  a  deliverable  state,  or  which  are  to  be  weighed 
or  measured  before  delivery,  the  breach  by  the  buyer  of  his 
promise  to  accept  and  pay  can  only  affect  the  vendor  by  way  of 
damages.     The  goods  are  still  his.    He  may  resell  or  not,  at  his 


5S0  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

pleasure.  But  his  only  action  against  the  buyer  is  for  damages 
for  nonaecoptance.  lie  can,  in  general,  only  recover  the  damage 
that  he  has  sustained,  not  the  full  price  of  the  goods.  The  law, 
■with  tlie  reason  for  it,  was  thus  stated  by  Tindal,  C.  J.,  in  de- 
livering the  opinion  of  the  Exchequer  Chamber  in  Barrow  v. 
Arnaud:  'Where  a  contract  to  deliver  goods  at  a  certain  price 
is  broken,  the  proper  measure  of  damages,  in  general,  is  the 
difference  between  the  contract  price  and  the  market  price  of 
such  goods  at  the  time  when  the  contract  is  broken,  because  the 
purchaser,  having  the  money  in  his  hands,  may  go  into  the 
market  and  buy.  So,  if  a  contract  to  accept  and  pay  for  goods 
is  broken,  the  same  rule  may  be  properly  applied,  for  the  seller 
may  take  his  goods  into  the  market  and  obtain  the  current  price 
for  them.'  "  It  is  conceded  that,  by  keeping  the  corn,  defendant 
in  error  kept  it  at  its  o^^^l  risk.  In  other  words,  had  the  price 
of  corn  gone  down  in  the  market,  the  Nye-Schneider  Company 
would  have  had  to  bear  the  loss,  whatever  it  might  be,  and  could 
recover  from  the  plaintiff  in  error  only  the  difference  between 
the  price  offered  and  the  fair  market  value  of  the  corn,  giving 
it  a  reasonable  time  within  which  to  dispose  of  the  same.  The 
corn  being  kept  at  defendant's  o'wn  risk  entitles  it  certainly  to 
any  advance  in  the  price  while  so  held.  The  plaintiff  in  error 
cannot  claim  the  benefit  arising  solely  from  a  risk  assumed  by 
defendant  in  error,  and  for  which  plaintiff  in  error  could  in 
no  wise  and  under  no  circumstances  be  made  liable.  This  prin- 
ciple is  fairly  established  in  Bridgford  v.  Crocker,  60  N.  Y.  627, 
where  it  is  said:  "Upon  the  failure  of  the  vendee  to  perform 
an  executory  contract  for  the  purchase  of  cattle,  the  vendor 
may  elect  to  tender  the  property  and  sue  for  the  contract  price, 
or  to  retain  the  property  as  his  ovna  and  recover  as  his  damages 
for  the  breach  the  difference  between  the  market  value  at  the 
time  the  vendee  was  to  receive  delivery  and  the  contract  price. 
If  he  elect  the  latter  course,  and  the  property  subsequently  rises 
in  value  in  the  market,  the  vendee  cannot  avail  himself  thereof, 
but  the  vendor  is  entitled  to  the  benefit. ' '  A  sale  of  the  corn  at 
an  advance  over  the  market  price  was  lost  through  the  negligence 
of  the  plaintiff  in  error.  Had  the  defendant  in  error,  on  learn- 
ing of  this  neglect,  offered  the  corn  on  the  market,  and  sold  it 
for  the  market  price,  no  one  disputes  the  liability  of  plaintiff  in 
error  for  the  difference  between  the  price  so  obtained  and  the 
offer  made  by  the  proposed  purchaser ;  but,  because  the  defendant 


ACTIONS  AGAINST  TELEGRAPH  COMPANIES.         581 

in  error  exercised  its  right  to  hold  the  corn  at  its  own  risk,  the 
telegraph  company  claims  the  benefit  of  the  advance  in  value 
which  finally  obtained.  In  other  words,  it  seeks  to  take  advantage 
of  a  venture  in  which  it  took  no  part,  and  of  which  it  assumed 
no  risk — the  benefit  of  a  hazard  from  which  it  could  not  be  in- 
jured. The  risk  was  that  of  the  defendant  in  error,  and  the  ad- 
vantage arising  therefrom  belongs  to  it  alone. 

Exemplary  damages  are  allowed,  when  the  defendant  fails  to  deliver 
a  death  message,  when  the  evidence  shows  wanton  and  reckless  disre- 
gard of  the  rights  of  plaintiff.     W,  U.  T.  Co.  v.  Gilstrap,  77  Kan.  191. 

When  the  plaintiff  sends  a  telegram  to  his  brother  requesting  a 
ticket  to  be  sent  by  telegraph,  and  when  the  agent  was  informed  that 
the  plaintiff  was  without  means  to  "lay  over,"  the  defendant  is  liable 
for  his  suffering  from  cold  and  hunger,  in  sleeping  out  of  doors,  and 
in  attempting  to  reach  his  home  400  miles  distant,  owing  to  the  non- 
delivery of  the  telegram.    Barnes  v.  W.  U.  Tel.  Co.  27  Nev.  43S. 

To  entitle  a  first  cousin  to  damages  for  mental  suffering  from 
failure  to  attend  the  funeral,  such  suffering  caused  by  negligence  In 
delivering  a  telegram,  special  damages  must  be  specifically  alleged, 
and  the  telegraph  company  must  have  had  special  notice  of  the  cir- 
cumstances. Johnson  v.  W.  U.  Tel.  Co.,  81  S.  C.  235.  But  in  case  of  a 
son,  prevented  from  attending  the  burial  of  his  mother,  such  actual 
damages  as  result  naturally  from  the  negligence  may  be  recovered 
under  a  general  averment  of  damages.  So  Relle  v,  W.  U.  Tel.  Co., 
55  Tex.  308. 

No  damages  allowed  for  physical  pain  endured  during  the  Interval 
between  the  time  when  the  telegram  summoning  a  physician,  should 
have  been  delivered,  and  the  time  when  it  was  actually  delivered, 
owing  to  the  negligence  of  the  telegraph  company.  Selfert  v.  W.  U. 
Tel.  Co.,  129  Ga.  121.  See  also  Squire  v.  W.  U.  Tel.  Co.,  98  Mass.  2.32 ; 
Barker  v.  W.  U.  Tel.  Co.,  134  Wis.  147;  W.  U.  Tel.  Co.  v.  Hall,  124 
U.  S.  444 ;  W.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748. 

Where  a  telegram  announcing  the  death  of  plaintiff's  grandmother 
was  not  delivered,  damages  for  mental  anguish  were  not  allowed 
where  there  was  no  pecuniary  or  bodily  injury.  W,  U.  Tel.  Co.  v. 
Ferguson,  1.57  Ind.  37. 

If  the  message  is  a  cipher  message  and  its  importance  is  not  dis- 
closed, the  company's  liability  is  limited  to  the  amount  paid  for  its 
transmission.  Fergusson  v.  Anglo-American  Tel.  Co.,  178  Pa.  377,  See, 
too,  W.  U.  Tei.  Co.  v.  Hall,  124  U.  S.  444. 


IX.     ACTIONS  UNDER  "CIVIL  DAMAGE 

ACT." 

MERRINANE  i'.  IMILLER. 
Michigan,   1907.     148  Mich.  413. 

Blair,  J.  Plaintiff,  the  wife  of  John  j\Ierrinane,  brought  this 
action,  in  accordance  with  the  provisions  of  the  civil  damage 
act,  to  recover  damages  of  defendant,  a  saloon  keeper,  and  his 
different  bondsmen  for  three  successive  years,  occasioned  by  sales 
of  liquor  to  her  husband.  Plaintiff  and  her  husband,  then  re- 
cently married  moved  to  Grass  Lake,  in  Jackson  county,  where 
defendant  was  conducting  his  business,  in  November,  1902.  They 
were  married  in  June,  1901,  and  lived  at  Chelsea  till  their  re- 
moval to  Grass  Lake.  Plaintiff's  husband  was  a  telegrapher  in 
the  employ  of  the  Michigan  Central  Railroad  Company,  earning 
$50  per  month,  and  at  the  time  he  went  to  Grass  Lake  was  a 
sober,  industrious  man  of  excellent  habits,  and  had  $500  of  his 
earnings  in  bank.  In  the  spring,  after  going  to  Grass  Lake,  he 
began  to  drink  moderately  at  defendant's  saloon,  of  which 
plaintiff's  brother  w^as  bartender,  and  prior  to  December,  1903, 
occasionally  got  intoxicated.  On  December  22d  he  was  notified 
of  his  discharge,  as  follows:  "Dear  Sir:  I  enclose  you  time 
ticket  for  $27.44  covering  17  days'  service  in  December,  and 
beg  to  advise  you  that  by  direction  of  Mr.  D.  S.  Sutherland, 
Div.  Supt.,  your  services  are  dispensed  with,  having  proven  un- 
satisfactory. Yours  truly,  E.  H.  Millinghok,  Supt.  Tel."  After 
his  discharge  he  drank  heavily  and  soon  became  a  common 
drunkard.  They  paid  $7  per  month  house  rent  and  from  $25 
to  $30  per  month  for  the  support  of  the  family  out  of  the  money 
in  the  bank  until  March,  1905,  when  the  money  was  all  gone, 
and  plaintiff  has  since  that  time  supported  herself  without  as- 
sistance from  her  husband.  Merrinane  was  night  operator,  his 
hours  of  duty  being  from  7  p.  m.  to  7  a.  m.  Plaintiff  testified : 
' '  I  knew  he  slept  while  he  was  on  duty.  He  always  had  a  student 
that  knew  the  call,  and  they  would  call  him  when  they  needed 

582 


ACTIONS  UNDER  *' CIVIL  DAMAGE  ACT."  583 

him.  He  was  a  fellow  that  couldn't  sleep  daytimes  very  much. 
He  would  try.  I  would  often  see  him  go  to  bed  five  or  six  times 
in  one  day,  but  he  never  could  get  used  to  sleeping  daytimes, 
and  he  always  had  a  student,  and  it  didn  't  make  much  difference 
because  they  could  arouse  him  when  they  needed  him.  *  *  * 
Did  not  ask  ]\Iiller  not  to  sell  her  husband.  Witness  never  per- 
sonally forbid  ]Miller  from  selling  her  husband  liquor.  Did  once 
through  her  brother,  that  was  in  March,  1905.  Up  to  JNIarch, 
1905,  witness  never  forbid  either  the  bartender  or  Miller  either 
verbally  or  in  writing  not  to  sell  her  husband  liquor;  heard  her 
husband  call  for  a  drink.  She  made  no  objection ;  said  nothing 
to  ]\Iiller  at  that  time,  although  she  had  the  opportunity. ' '  De- 
fendant was  the  only  witness  in  his  behalf  and  testified,  in  sub- 
stance, as  follows:  "He  patronized  my  business  more  or  less 
during  the  spring  of  1903.  To  m.y  knowledge  I  never  saw  him 
intoxicated  during  that  time.  I  never  sold  him  when  he  was  in- 
toxicated; don't  know  whether  my  bartender  sold  him  or  not. 
*  *  *  When  a  man  is  intoxicated,  in  my  judgment,  he  would 
be  so  he  couldn't  help  himself.  To  be  intoxicated  would  be  un- 
able to  help  himself,  would  lay  in  a  stupor,  and  would  not  be 
able  to  go  home.  A  man  who  is  able  to  go  home,  though  he  reels 
and  takes  up  the  whole  sidewalk,  I  should  not  judge  to  be  intox- 
icated." Plaintiff's  counsel  presented  no  requests  to  charge. 
The  jury  returned  a  verdict  in  favor  of  plaintiff  and  against  all 
of  the  defendants  for  the  sum  of  $600.  Plaintiff  made  a  motion 
for  a  new  trial  on  the  ground  that  the  verdict  was  against  the 
law  and  the  evidence  and  the  damages  aAvarded  grossly  inade- 
quate. The  motion  was  denied,  reasons  therefor  filed,  exception 
taken,  and  error  assigned  thereon.  Plaintiff  brings  the  record 
to  this  court  for  review  upon  writ  of  error. 

In  view  of  the  verdict  in  plaintiff's  favor  against  all  of  the 
defendants,  the  only  assignments  of  error  which  require  consid- 
eration are  those  based  upon  the  denial  of  the  motion  for  a  new 
trial,  and  upon  such  rulings  and  Instructions  of  the  court  as  may 
have  affected  the  amount  of  the  damages.  The  seventh,  eighth, 
and  thirteenth  assignments  of  error  allege  error  in  instructing 
the  jury  that  the  plaintiff  could  only  complain  of  unlawful  sales 
which  were  unlawful  because  made  to  an  intoxicated  person  or 
one  in  the  habit  of  getting  intoxicated.  "I  do  not  mean  by  un- 
lawful sales,  sales  made  after  hours  at  night  or  before  lawful 
hours  begin  in  the  morning.    We  are  not  undertaking  to  punish 


584  ACTIONS  UNDER  ''CIVIL  DAMAGE  ACT." 

]\Ir.  ]\Iiller  because  he  kept  open  too  late  at  night  or  opened  up 
too  early  in  the  morning,  or  was  open  on  Sunday  or  Christmas, 
or  any  other  holiday.  But  you  have  a  right  to  consider  what 
sales  he  made  and  when  he  made  them,  if  they  were  made  to  ]Mr. 
Merrinane,  simply  to  enable  you  to  understand  in  what  way  Mr. 
Miller  was  dealing  with  Mr.  Merrinane;  and,  if  he  sold  him 
liquors  during  the  time  he  was  a  man  in  the  habit  of  getting  in- 
toxicated or  at  times  when  he  was  intoxicated,  he  is  liable,  and 
it  is  sufficient  whether  he  sold  them  out  of  hours  or  in  hours. 
But,  as  I  say,  you  may  consider  whether  they  were  out  of  hours 
simply  in  connection  with  determining  any  wantonness,  or  reck- 
lessness or  carelessness  in  the  way  he  was  dealing  with  ]\Ir.  Merri- 
nane, and  for  no  other  purpose."  This  question  arose  during 
the  progress  of  the  trial,  and  plaintiff's  counsel  stated  his  posi- 
tion as  follows :  "If  the  sales  the  first  year  were  legal  at  the  time 
he  was  being  made  a  drunkard,  the  bondsmen  for  that  year  are 
not  liable.  *  *  *  jf  ^\^q  ggigg  ^re  illegal  and  they  tend  to 
create  the  habit  which  makes  him  a  drunkard,  they  are  liable." 
It  was  held  by  this  court  in  Peacock  v.  Oaks,  85  Mich.  578,  that 
there  could  be  no  recovery  under  the  statute  for  injuries  caused 
by  the  sale  or  furnishing  of  liquor  to  another,  unless  such  sale  or 
furnishing  is  in  violation  of  law.  Whether  this  broad  statement 
of  the  law  may  not  require  some  qualification  it  is  unnecessary 
to  determine  in  this  case.  Plaintiff's  counsel  conceded  that 
plaintiff  could  only  complain  of  illegal  sales,  but  contended  that 
among  such  sales  were  included  sales  after  hours  or  on  Sundays, 
etc.  We  think  the  instruction  properly  limited  the  effect  of  such 
sales. 

The  ninth  assignment  of  error  complains  of  an  instruction 
that  plaintiff  was  not  seeking  to  recover  any  part  of  the  money 
that  her  husband  spent  for  liquor.  There  is  no  specific  claim 
for  such  an  item  of  damages  in  the  declaration,  nor  was  any  evi- 
dence given  from  which  the  jury  could  determine  the  amount  of 
money  spent  for  liquor  by  Merrinane. 

The  tenth  assignment  of  error  is  as  follows:  ''The  court  erred 
in  charging  the  jury,  as  follows:  'But,  if  the  amount  she  would 
receive  had  only  been  diminished  and  she  had  not  been  entirely 
deprived  of  it,  then  you  would  consider  the  extent  of  the  diminu- 
tion, if  any,  of  her  support  due  to  those  causes.'  "  It  is  con- 
tended that  the  testimony  showed  a  complete  and  not  a  partial 
loss,  and  the  instruction  was  therefore  erroneous.     The  conten- 


ACTIONS  UNDER  '' CIVIL  DAMAGE  ACT."  585 

tion  is  not  sustained  by  the  record.    There  was  only  a  partial  loss 
during  the  first  year  at  least. 

The  eleventh  assignment  of  error  is  as  follows:  "The  court 
erred  in  charging  the  jury  as  follows:  'Now,  the  expectancy 
tables  have  been  shown  here  in  evidence.  Her  age  is  29  and  his 
age  33.  Her  expectancy  is  36  2-10  years  and  his  expectancy 
33  21-100.  These  are  simply  given  to  you  as  aids,  not  as  absolute 
proof  that  he  would  live  33  years,  or  that  she  would  live  36 
years. '  ' '  The  court  correctly  stated  the  general  rule ;  and,  if 
plaintiff's  counsel  claimed  that  the  facts  of  this  case  took  it  out 
of  the  general  rule,  he  should  have  brought  such  contention  to 
the  attention  of  the  court.  Davis  v.  :\I.  C.  R.  R.  (Mich.)  Ill 
N.  W.  76. 

The  serious  question  in  the  case  is  presented  by  the  assignment 
of  error  upon  the  denial  of  the  motion  for  a  new  trial.  Are  the 
damages  so  clearly  inadequate,  as  claimed  by  plaintiff's  counsel, 
that  the  trial  judge  ought  to  have  awarded  a  new  trial?  The 
facts  establishing  plaintiff's  cause  of  action,  as  presented  by  this 
record,  are  practically  undisputed,  and  plaintiff  would  have  been 
entitled,  upon  request  therefor,  to  an  instruction  that  she  was 
entitled  to  a  verdict,  and  the  only  question  for  the  jury  was  as 
to  the  amoimt  of  the  damages  she  had  suffered.  The  undisputed 
facts  presented  by  this  record  show  that,  when  plaintiff  and  her 
husband  moved  to  Grass  Lake,  he  was  a  temperate,  industrious 
man,  of  good  standing  in  his  vocation,  earning  .$50  a  month  and 
contributing  to  his  wife's  support  from  $25  to  $30  per  month. 
A  few  months  after  coming  to  Grass  Lake,  he  began  drinking  at 
defendant's  saloon,  and  from  that  time  on  he  gradually  be- 
came intemperate  until  his  discharge  in  December.  1903.  "At 
the  time  of  his  discharge,  he  was  there  nearly  all  the  time." 
After  his  discharge  his  descent  was  rapid  until  he  became  a 
common  drunkard,  and  was  no  longer  capable  of  furnishing  any 
support  to  plaintiff.  The  defendant  Miller  and  his  employes 
began  and  completed  Merrinane's  ruin.  So  far  as  this  record 
discloses,  they  had  no  helpers.  As  often  as  he  requested,  after 
legal  hours,  on  Sundays,  or  legal  holidays,  regardless  of  the  law 
and  his  wife,  so  long  as  he  was  able  to  stand  before  the  bar, 
they  dealt  out  the  liquor  to  him,  and  only  desisted  when  "he  lay 
in  a  stupor,  and  would  not  be  able  to  go  home."  "]Miller  sold 
him  liquor  while  in  that  condition  any  time  he  wanted  it  if  he 
could  only  stand  up  and  drink.     *     *     *     Witness    [the  bar- 


586  ACTIONS  UNDER  *' CIVIL  DAMAGE  ACT." 

teuder]  told  ^liller  if  he  kept  selling  Merrinane  liquour  it  would 
make  him  trouble.  !Mliller  said  he  would  not  sell  it  to  him,  but 
the  next  day  he  would  get  it  just  the  same.  Miller  said  it  was 
a  good  thing  for  witness's  sister  to  get  a  divoree  from  Merrinane. 
Miller  said  that  it  was  the  way  his  sister's  husband  went,  lie 
either  died  or  else  she  got  a  divoree.  Miller  said  he  thought 
Merrinane  was  so  far  gone  he  would  never  stop  drinking. ' '  None 
of  these  statements  were  denied  by  IMiller,  and  so  clear  a  right 
to  exemplary  damages  is  presented  by  this  record  that  a  peremp- 
tory instruction  to  that  effect  would  have  been  justified.  The 
ease  is  unique,  in  that  the  facts  which  support  the  cause  of  ac- 
tion are  undisputed  and  no  attempt  is  made  to  soften  the  harsh 
features  of  the  case  or  mitigate  the  damages.  On  the  contrary, 
we  have  the  opinion  of  the  principal  defendant  that  the  damage 
was  complete ;  that  ' '  Merrinane  was  so  far  gone  he  would  never 
stop  drinking."  Upon  any  reasonable  theory  of  the  facts  dis- 
closed by  this  record,  we  cannot  regard  the  amount  awarded 
plaintiff  by  the  verdict  of  the  jury  as  an  adequate  measure  of 
her  damages,  and  we  think  the  trial  judge  erred  in  denying  the 
motion  for  a  new  trial. 

The  judgment  is  reversed,  and  a  new  trial  granted. 


BECKERLE  v.  BRANDON. 

Illinois,  1907.     229  111.  323. 

This  is  an  action  on  the  case  brought  by  John  Brandon  and 
Sarah  Brandon,  appellees,  in  the  circuit  court  of  Jackson  comity, 
under  section  9  of  the  dramshop  act  (Hurd's  Rev.  St.  1904,  e. 
43),  against  George  Beckerle,  appellant,  and  one  D.  P.  Willis, 
for  injury  to  their  means  of  support  occasioned  by  the  death  of 
their  son,  John  Brandon,  Jr.  A  plea  of  the  general  issue  was 
filed  by  defendants,  and  the  trial  resulted  in  a  verdict  and  judg- 
ment for  plaintiffs  in  the  sum  of  $3,000.  Defendants  appeal. 
The  declaration,  which  contains  but  one  count,  charges:  That 
Beckerle  conducted  a  dramshop  in  Murphysboro,  Jackson 
county,  111.,  in  a  certain  building  leased  from  one  D.  P.  Willis; 
that  Willis  knew  for  what  purpose  the  building  was  leased ;  that 
on  September  1,  1905,  while  conducting  said  business,  said  Beck- 
erle sold  and  gave  intoxicating  liquors  to  plaintiffs'  minor  son, 
causing  his  intoxication,  and  while  so  intoxicated,  and  in  conse- 


ACTIONS  UNDER  '' CIVIL  DAMAGE  ACT."  587 

quence  thereof,  he  was  struck  and  killed  by  a  certain  railroad 
train;  that  during  his  lifetime  their  said  son  earned  the  sum  of 
$70  per  month ;  that  they  were  entitled  to  his  wages ;  that  he  con- 
tributed the  same  to  their  maintenance  and  support ;  and  that 
by  reason  of  his  death  they  have  been  injured  in  their  means  of 
support  and  deprived  of  the  same.  It  appears  from  the  record 
that  on  August  31,  1905,  Beckerle  kept  a  saloon  in  the  city  of 
Murphysboro  in  a  building  leased  from  D.  P.  Willis,  who  was 
the  owTier  thereof.  The  deceased,  who  was  a  minor  son  of  the 
plaintiffs,  17  years  of  age  and  residing  with  them,  was  em- 
ployed as  a  mule  driver  in  a  coal  mine,  earning  the  sum  of  $2.42 
a  day.  It  seems  from  the  evidence  that  all  of  the  money  earned 
by  the  son  was  by  him  paid  over  to  his  parents  and  used  by  them 
in  support  of  the  family.  In  the  early  part  of  the  evening  of 
August  31,  1905,  Jolin  Brandon,  Jr.,  with  several  other  boys, 
went  to  the  saloon  of  defendant  Beckerle,  where  they  remained 
until  midnight,  drinking  intoxicating  liquors  and  playing  cards. 
The  saloon  closed  at  midnight,  and  by  that  time  Brandon  was 
very  much  intoxicated.  Liquor  had  been  sold  and  served  to 
him  in  the  saloon  on  that  evening  by  both  Beckerle  and  his  bar- 
keeper. He  w^s  perfectly  sober  when  he  entered  Beckerle 's  sa- 
loon and  had  obtained  liquor  from  no  other  place  during  the 
night.  As  the  saloon  closed,  one  of  Brandon's  associates  ob- 
tained a  pint  of  whisky  from  the  barkeeper,  and,  with  this  com- 
panion and  another,  Brandon  started  for  Mt.  Carbon,  where  all 
three  resided,  on  the  opposite  side  of  the  Big  ]Muddy  river  from 
Murphysboro.  To  reach  their  homes  they  started  to  cross  the 
stream  on  the  Illinois  Central  Railroad  bridge,  which  spans 
the  river  at  that  place.  "When  about  halfway  across  they  stopped. 
and  each  took  a  drink  of  w^hisky.  They  then  sat  down  on  the 
bridge,  and  in  a  few  minutes  fell  asleep.  Between  two  and  three 
hours  afterward,  deceased,  while  still  asleep  on  the  bridge,  was 
struck  by  a  passing  train  and  received  injuries  from  which  he 
died  the  following  afternoon.  It  is  urged  by  appellants  as 
groimds  for  reversal :  First,  the  court  erred  in  passing  on  in- 
structions; second,  the  court  erred  in  passing  on  objections  to 
evidence. 

Scott,  J.  (after  stating  the  facts  as  above).  There  is  evidence 
in  the  record  which  shows  that  the  deceased  was  but  17  years  of 
age;  that  on  the  night  of  his  death  Beckerle,  by  himself  or  his 
barkeeper,  sold  intoxicating  liquor  to  the  boy  which  caused  his 


588  ACTIONS  UNDER  '' CIVIL  DAMAGE  ACT." 

intoxication,  and  also  sold  him  liquor  of  that  nature  after  he 
was  so  intoxicated;  that  the  appellees  were  injured  in  their 
means  of  support  in  consequence  of  such  intoxication ;  and 
that  Willis  rented  the  premises  to  Beckerle  and  knowingly  per- 
mitted the  sale  of  intoxicating  liquors  therein. 

The  court  gave  plaintiffs'  instruction  No.  8,  which  advised  the 
jury  that  if  they  found  for  the  plaiutill's,  and  found  certain 
alleged  facts  to  be  true,  they  might  then  return  a  verdict  in- 
cluding exemplary  damages.  This  is  said  to  have  been  wrong 
so  far  as  Willis,  the  owner  of  the  property,  is  concerned,  as 
the  evidence  did  not  show  any  intentional  wrongdoing,  or  any 
reckless,  malicious,  wanton,  or  oppressive  conduct  on  his  part. 
Section  9  of  chapter  43,  Hurd's  Rev.  St.  1905,  gives  a  right  of 
action  against  the  liquor  seller  under  certain  circumstances, 
and  provides  that  the  ovmer  of  the  building,  in  specified  con- 
tingencies, "shall  be  liable,  severally  or  jointly,  with  the  person 
or  persons  selling  or  giving  intoxicating  liquors  aforesaid,  for 
all  damages  sustained,  and  for  exemplary  damages."  The  lan- 
guage just  quoted  received  the  consideration  of  this  court  in 
Hackett  v.  Smelsley,  77  111.  109,  and  the  reasoning  of  that  opinion 
warranted  the  circuit  court  in  giving  the  instruction  above  re- 
ferred to. 

It  is  then  urged  that  the  court  erred  in  not  permitting  the  de- 
fendants to  show  that  the  father  and  son  visited  and  drank  to- 
gether at  other  saloons  at  other  times.  Inasmuch  as  the  plaintiffs 
were  claiming  vindictive  damages,  this  evidence  was  competent. 
Hackett  v.  Smelsley,  supra.  The  fact  that  the  wife  sued  jointly 
with  the  husband  did  not  warrant  its  exclusion.  If  the  father 
had  on  other  occasions  consented  to  the  sale  of  intoxicating  liquor 
to  his  minor  son,  the  jury  had  a  right  to  take  that  fact  into  con- 
sideration in  determining  whether  vindictive  damages  should 
be  awarded,  and  in  fixing  the  amount  thereof  in  case  they 
awarded  damages  of  that  kind,  no  matter  who  sued.  We  think, 
however,  that  this  error  does  not  warrant  a  reversal.  It  was 
shown  by  the  testimony  of  the  father  and  others  that  on  earlier 
occasions  at  Beckerle 's  bar  the  son  had  bought  intoxicants, 
the  father  consenting,  and  that  the  son  had  there,  in  the  presence 
of  the  father,  partaken  of  the  same  without  objection  from  the 


ACTIONS  UNDER  "CIVIL  DAMAGE  ACT."  589 

latter.    Under  these  circumstances  the  exclusion  of  the  evidence 
in  question  was  not  harmful. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 

The  Civil  Damage  Act  in  Illinois  declares  that  for  wrongful  death 
through  intoxication  caused  by  drinking  at  defendant's  saloon  "the 
jury  may  give  such  damages  as  they  shall  deem  a  fair  and  just  com- 
pensation." Where  deceased  was  a  couiirmed  inebriate,  whose  wife 
had  obtained  a  divorce,  and  whose  next  of  kin  was  an  adult  self- 
suyporting  brother,  it  was  held,  in  North  Chicago  St.  Railway  Co.  v. 
Biddie,  40  N.  E.  Rep.  942,  that  only  nominal  damages  could  be  re- 
covered. 

A  saloon-keeper  is  liable  under  the  civil  damage  law,  when  it  is 
shown  that  his  agent  sold  liquor  to  a  man,  who,  when  intoxicated, 
committed  suicide,  when  said  saloon-keeper  had  been  notified  by  de- 
cedent's wife  not  to  sell  liquor  to  her  husband.  Dice  v.  Sherberneau, 
152  Mich.  601.     See  also  Hilliker  v.  Farr,  149  Mich.  444. 


X.     EMINENT  DOMAIN. 
SOUTH  BUFFALO  RAILWAY  CO.  v.  KIRKOVER. 

New  York,  1903.     176  N.  Y.  301. 

Bartlett,  J,  The  single  question  of  law  presented  by  this 
appeal  is  as  to  the  rule  which  should  govern  the  commissioners 
in  awarding  compensation  for  damages  to  the  part  of  the  tract 
of  land  not  taken.  The  counsel  for  the  appellant  railroad  com- 
pany insists  that  the  proper  rule  as  to  damages,  in  addition  to 
those  allowed  for  the  land  actually  taken,  may  be  thus  stated: 
"•Compensation  is  only  allowed  for  such  damages  to  the  residue 
as  are  caused  by  the  severance  from  it  of  the  part  taken,  and 
(according  to  some  of  the  cases)  in  estimating  such  damages 
the  grade  or  elevation  of  the  railroad  may  be  taken  into  account 
as  an  element  of  the  severance."  The  learned  Appellate  Divi- 
sion in  its  opinion  (83  N.  Y.  Supp.  613)  states  the  rule  to  be  that 
the  o\Mier  is  entitled  to  recover  the  market  value  of  the  premises 
actually  taken  by  such  railroad  company,  and  also  any  damages 
which  resulted  to  the  portion  of  his  premises  not  taken,  not  only 
by  reason  of  the  taking  of  the  property  acquired  by  the  railroad 
company,  but  also  by  reason  of  the  use  to  which  the  property 
was  put  by  the  company.  It  has  been  frequently  pointed  out 
in  judicial  opinions  that  there  has  been  great  conflict  of  au- 
thority in  this  state  as  to  which  of  the  rules  above  stated  was 
best  calculated  to  do  justice  between  the  parties.  The  early 
cases  in  the  Supreme  Court  laid  down  the  rule  insisted  upon 
by  appellant's  counsel.  Troy  &  Boston  R.  R.  Co.  v.  Lee,  13  Barb. 
169;  Albany  Northern  R.  R.  Co.  v.  Lansing,  16  Barb.  69;  Can- 
andaigua  &  N.  F.  R.  R.  Co.  v.  Payne,  Id.  273 ;  Matter  of  Union 
Village  &  Johnson ville  R.  R.  Co.,  53  Barb.  457 ;  Black  River  & 
M.  R.  R.  Co.  V.  Barnard,  9  Hun,  104;  Albany  &  Susquehanna  R. 
Co.  V.  Dayton,  10  Abb.  Prac.  (N.  S.)  183.  In  Matter  of  Utica, 
C.  &  S.  Valley  R.  R.  Co.,  56  Barb.  456,  the  General  Term  held 
that,  when  land  is  taken  for  the  construction  of  a  railroad  with- 
out the  consent  of  an  o\\Tier,  compensation  to  be  paid  therefor 
is  not  limited  to  the  actual  value  of  the  land  taken  and  the  de- 

590 


EMINENT  DOMAIN.  591 

preciation  of  the  residue  of  the  lot  from  which  it  is  taken  by 
such  separation;  but  the  owner  is  entitled  to  recover  also  for 
any  depreciation  caused  by  the  use  to  which  it  is  appropriated. 
This  case  was  followed  in  Matter  of  N.  Y.  C.  &  H.  R.  R.  R.  Co., 
15  Hun,  63,  and  Matter  of  N.  Y.,  Lackawanna  &  Western  Ry. 
Co.,  29  Hun,  1.  The  tendency  of  judicial  decisions  in  the  Su- 
preme Court  has  been  in  favor  of  the  more  liberal  rule  adopted 
by  the  court  below  in  the  case  at  bar. 

Our  attention  has  not  been  called  to  any  case  in  this  court 
where  the  question  was  presented  under  the  precise  state  of 
facts  disclosed  by  this  record.  In  Henderson  v.  N.  Y.  C.  R.  R. 
Co.,  78  N.  Y.  423,  it  was  held  that  in  a  proceeding  by  a  railroad 
corporation  to  acquire  a  right  to  lay  its  tracks  in  a  street  or  high- 
way, the  fee  of  which  is  in  the  owner  of  the  adjoining  land,  the 
proper  compensation  is :  First.  The  full  value  of  the  land  taken. 
Second.  The  fair  and  adequate  compensation  for  the  injury  the 
owner  has  sustained  and  will  sustain  by  the  making  of  the  rail- 
road over  his  land ;  and  for  this  purpose  it  is  proper  to  ascertain 
and  determine  the  effect  the  conversion  of  the  street  into  a  rail- 
road track  will  have  upon  the  residue  of  the  owner's  land.  In 
Newman  v.  ]\Ietropolitan  Elevated  Ry.  Co.,  118  N.  Y.  618,  Judge 
Brown  (page  623,  118  N.  Y.,  and  page  902,  23  N.  E.)  uses  this 
language:  "The  principle  upon  which  compensation  is  to  be 
made  to  the  owner  of  land  taken  by  proceedings  under  the  gen- 
eral railroad  law  has  been  frequently  considered  by  the  courts 
of  this  state,  and  the  rule  is  now  established,  first,  that  such 
owner  is  to  receive  the  full  value  of  the  land  taken ;  and,  second, 
where  a  part  only  of  land  is  taken,  a  fair  and  adequate  com- 
pensation for  the  injury  to  the  residue  sustained,  or  to  be  sus- 
tained, by  the  construction  and  operation  of  a  railroad."  The 
case  in  which  the  learned  judge  wrote  was  one  of  that  large  class 
of  elevated  railway  cases  in  the  city  of  New  York  involving 
injury  to  the  easements  of  light,  air,  and  access,  no  land  being 
taken.  In  Bohm  v.  Metropolitan  Elevated  Ry.  Co.,  129  N.  Y. 
576,  Judge  Pockham  uses  this  language:  "Then,  as  to  the  land 
remaining,  the  question  has  been  to  some  extent  mooted  whether 
the  company  should  pay  for  the  injury  caused  to  such  land  by 
the  mere  taking  of  the  property,  or  whether,  in  case  the  pro- 
posed use  of  the  property  taken  should  depreciate  the  value  of 
that  which  was  not  taken,  such  proposed  use  could  be  regarded, 
and  the  depreciation  arising  therefrom  be  awarded  as  a  part  of 


592  EMINENT  DOMAIN. 

the  consequential  damages  suffered  from  the  taking.  I  think  the 
latter  is  the  true  rule."  The  learned  judge  cites  Henderson  v. 
N.  Y.  C.  R.  R.  Co.,  78  N.  Y.  423,  433 ;  Newman  v.  Metr.  El.  Ry. 
Co.,  118  N.  Y.  618;  Matter  of  Brooklyn  Elevated  R.  R.  Co.,  55 
Hun,  165,  167,  adding:  "The  question  might  be  of  great  im- 
portance Avliere  there  was  an  injury  to  the  remaining  land;  but, 
if  there  has  been  no  injury,  the  inquiry  as  to  the  scope  of  the 
liability  for  damages  is  not  material."  This  was  also  an  elevated 
railroad  case,  involving  only  the  injury  to  easements,  and  no 
land  was  taken.  It  may  be  true,  as  stated  by  appellant's  counsel, 
that  the  precise  question  now  presented  has  never  been  passed 
upon  by  this  court.  It  is,  however,  equally  true  that  the  deci- 
sions in  the  Supreme  Court  and  in  this  court  tend  strongly  to 
the  recognition  of  the  more  liberal  rule. 

Considering  the  principle  involved,  unembarrassed  by  legal 
decisions,  it  is  reasonable  that  where  the  state,  in  the  exercise  of 
the  right  of  eminent  domain,  sees  fit  to  take  the  property  of  the 
citizen  without  his  consent,  paying  therefor  such  damages  as  are 
the  result  of  the  taking,  the  commissioners  in  the  condemnation 
proceedings  should  not  only  be  permitted,  but  required,  to 
award  the  owner  a  sum  that  will  fully  indemnify  him  as  to  those 
proximate  and  consequential  damages  flowing  from  this  act  of 
sovereign  power.  The  exercise  of  the  right  of  eminent  domain 
is  allowed  upon  the  theory  that,  while  the  taking  of  property  may 
greatly  inconvenience  the  individual  owners  affected,  it  is  in 
the  interest  and  to  promote  the  welfare  of  the  general  public. 
This  being  so,  there  is  no  reason  why  the  citizen  whose  land  is 
taken  in  invitum  should  suffer  any  financial  loss  that  may  be 
prevented  by  awarding  him  proximate  and  consequential  dam- 
ages. It  may  well  be  that  in  every  case  there  are  remote  damages 
that  the  citizen,  under  the  circumstances,  must  suffer.  It  not 
infrequently  happens  that  some  extensive  public  improvement, 
as  the  construction  of  a  great  reservoir  in  the  vicinity  of  a 
large  city  like  New  York,  drives  families  from  old  homesteads 
occupied  for  generations,  and  submerges  the  entire  property.  It 
it  apparent  that  in  such  cases  no  reasonable  and  lawful  rule  of 
damages  can  fully  compensate  the  landowners  thus  dispossessed. 
In  the  case  at  bar  we  have  the  ordinary  and  usual  situation, 
w^here  the  commissioners  have  reported  in  favor  of  paying  the 
owner  the  value  of  the  land  taken,  and  the  damage  to  the  bal- 
ance by  reason  of  the  severance,  and  the  use  to  which  the  prop- 


EMINENT  DOMAIN.  593 

erty  taken  is  to  be  put  by  the  railroad  company.  It  is  insisted 
on  behalf  of  the  appellant  that  the  commissioners  erroneously 
took  into  account  as  factors  causing  damage  the  use  to  which  the 
property  was  to  be  put ;  that  is,  the  operation  thereon  of  a  rail- 
road, with  its  smoke,  noise,  dust  and  cinders,  and  the  embank- 
ment obstructions  to  the  view.  It  is  also  argued  that  the  elevated 
railroad  cases  in  the  city  of  New  York  are  in  a  special  category, 
and  not  applicable  to  the  case  at  bar.  In  most  of  the  elevated 
railroad  cases  the  city  owned  the  fee  of  the  street,  the  railroad 
being  erected  therein  by  legislative  grant,  and  the  original  ques- 
tion presented  to  this  court  was  whether  the  injury  suffered  by 
the  abutting  owner  to  his  easements  of  light,  air,  and  access 
created  a  cause  of  action  against  the  railroad  company.  It  was 
held  in  the  Story  Case,  90  N.  Y.  122,  that  these  easements  be- 
came at  once  appurtenant  to  the  land,  forming  an  integral  part 
of  the  estate,  and  constituted  property  within  the  meaning  of  the 
state  Constitution  (article  1,  §  6),  which  prohibits  the  taking  of 
private  property  without  just  compensation.  It  therefore  fol- 
lowed that  in  the  trial  of  the  elevated  railroad  cases  any  evidence 
was  competent  tending  to  show  injury  to  these  easements  of 
light,  air,  and  access,  as  they  were  property.  A  similar  rule  of 
evidence  is  applicable  to  the  case  before  us.  The  difference  be- 
tween the  elevated  railroad  cases  and  this  case  is  not  material. 
In  this  case,  as  in  the  elevated  railroad  cases,  one  of  the  questions 
is  as  to  the  damages  inflicted  upon  land  not  taken,  and  the  in- 
quiry is,  to  what  extent  does  the  use  of  the  railroad  on  the  ad- 
jacent property  taken  damage  the  property  the  fee  of  which  re- 
mains in  the  defendants?  This  property  is  the  land  and  its 
appurtenances.  Any  evidence  tending  to  legally  establish  the 
amount  of  this  damage  is  competent. 

It  is  to  be  assumed  that  the  commissioners  appointed  from  time 
to  time  in  condemnation  proceedings  are  intelligent  and  com- 
petent men,  anxious  to  do  exact  justice  between  the  parties.  It 
may  be  further  assumed  that  they  will  judiciously  discriminate 
between  farm  lands  in  the  country  and  property  located  within 
the  limits  of  a  city,  upon  which  dwellings  and  other  structures 
may  be  ultimately  erected.  In  the  one  case,  under  existing  con- 
ditions, damages  might  be  slight,  while  in  the  other  very  sub- 
stantial. In  this  case  it  is  pointed  out  in  the  opinion  of  the 
learned  Appellate  Division  that  the  average  amount  of  dam- 
ages to  the  property  not  taken  was  $94,435,  as  fixed  by  nine  wit- 

3  8 


594  EMINENT  DOMAIN. 

nesses  called  by  the  defendants,  but  the  commissioners  found 
the  damages  to  be  $41,500.  Attention  is  also  called  to  the  fact 
in  the  opinion  that  the  average  amount  of  damages  fixed  by- 
plaintiff's  witnesses  was  much  less  than  the  award.  It  appears 
by  the  report  of  the  commissioners  that  on  a  number  of  days,  by 
consent  of  counsel,  they  personally  inspected  the  premises  in- 
volved in  this  proceeding.  We  are  of  opinion  that  the  rule  of 
damages  adopted  by  the  commissioners  was  the  proper  one, 
and  that  the  record  discloses  no  legal  error. 

The  order  and  judgment  appealed  from  should  be  affirmed, 
with  costs. 

Parker,  C.  J.,  and  O'Brien,  Martin,  Vann,  Cullen,  and 
Werner,  JJ.  concur. 

Order  affirmed,  with  costs. 


STEPHENS  V.  NEW  YORK,  0.  &  W.  RY.  CO. 

New  York,  1903.     175  N.  Y.  72. 

The  action  was  commenced  in  1889  to  restrain  the  operation 
of  the  defendant's  road  upon  tracks  opposite  the  plaintiff's 
premises  on  Second  street,  in  the  village  of  Fulton,  until  his 
interests  were  acquired  through  condemnation  proceedings,  and 
to  recover  the  damages  sustained  by  him  in  the  past.  The  prin- 
cipal defense  to  the  action  was  based  upon  a  resolution  of  the 
trustees  of  the  village  permitting  the  defendant's  predecessor, 
the  New  York  &  Oswego  Midland  Railroad  Company,  to  lay 
the  track  of  its  railroad  in  the  street,  and  upon  an  instrument  in 
writing,  and  under  seal,  executed  by  the  plaintiff  and  other 
abutting  landowners,  giving  their  consent  to  the  operation  of 
the  railroad  upon  the  street  in  front  of  their  lots.  The  trial  was 
had  before  a  referee,  who,  upon  findings,  rendered  a  decision  in 
favor  of  the  defendant,  and  dismissed  the  complaint.  Upon  ap- 
peal the  Appellate  Division  in  the  Fourth  Department  affirmed 
the  judgment  entered  upon  the  referee's  decision,  and  the  plain- 
tiff appealed  to  this  court. 

The  referee  held  that  the  instrument  signed  by  the  plaintiff 
was  a  license,  and  that  its  effect  was  to  abandon  what  easements 
the  plaintiff  had  in  the  street,  and  to  preclude  him  from  re- 
covering any  damages  consequent  upon  the  construction  and 
operation  of  the  railroad. 


EMINENT  DOMAIN.  595 

Gray,  J.  Whether  we  hold  the  instrument  in  question,  to 
which  the  plaintiff  affixed  his  seal  and  signature,  to  be  a  license 
or  an  agreement  for  an  easement,  is  not  very  material  to  the 
decision,  in  my  opinion,  for  the  reason  that  in  either  holding  it 
was  quite  inadequate  to  confer  a  right  to  make  use  of  the  street 
for  railroad  operations  to  an  unlimited  extent. 

I  reach  the  conclusion  that,  the  location  or  route  of  the  pro- 
posed railway  being  indefinitely  described  upon  the  map  and  by 
the  plaintiff's  agreement,  the  principle  of  construction  which 
obtains  in  the  cases  of  grants  of  easements  made  in  general  terms 
should  govern  here,  and,  applying  it  to  the  established  facts,  the 
court  should  hold  that  the  track,  as  located  in  the  center  of  Sec- 
ond street,  was  unchangeable,  and  that  the  railway  could  not  be 
added  to  upon  the  plaintiff's  land  without  his  further  permission, 
or  the  acquisition  of  the  right  through  statutory"  condemnation 
proceedings.  Washburn  on  Easements,  225,  240 ;  Onthank  v. 
Lake  Shore  &  M.  S.  R.  R.  Co.,  supra;  Jennison  v.  Walker,  11 
Gray,  423.  When  the  railroad  company  undertook  to  change 
and  to  add  to  its  tracks  in  the  ways  described,  it  became  a 
trespasser  as  to  the  plaintiff.  It  rendered  itself  liable  to  be 
restrained  in  its  operations,  and  to  a  recovery  of  dam- 
ages for  any  injuries  sustained.  So  far  as  the  ordinary 
and  necessary  operation  of  its  railroad  upon  the  one  track 
through  the  street  would  cause  annoyance,  or  constitute  a  nui- 
sance, affecting  the  enjoyment  and  use  of  his  property,  the  plain- 
tiff could  not  complain.  No  recovery  of  consequential  damages 
could  be  had  which  were  occasioned  by  the  injuries  resulting 
therefrom.  They  would  be  the  incidents  of  the  right  granted, 
as  to  which  the  defendant  would  be  released.  But,  so  far  as  it 
was  a  trespasser  upon  plaintiff's  land,  the  defendant  could  be 
compelled  to  acquire  further  easements  therein,  if  needed  for 
its  corporate  purposes,  by  purchase  or  through  condemnation 
proceedings,  under  the  penalty  of  being  restrained  in  its  oper- 
ations if  it  failed  to  do  so ;  and,  so  far  as  damages  had  been  sus- 
tained through  defendant's  wrongful  acts,  to  the  extent  that 
they  may  be  separately  established  as  resulting  therefrom,  they 
can  be  recovered  by  the  plaintiff.  That  any  appreciable  dam- 
age resulted  from  the  sliglit  change  in  the  location  of  the  pas- 
senger and  freight  depots  is  not  apparent  upon  the  proofs. 
They  were  necessary  incidents  to  the  operation  of  the  railroad 
as  authorized. 


596  EMINENT  DOMAIN. 

For  these  reasons,  I  advise  a  reversal  of  the  judgment,  and 
that  a  new  trial  should  be  ordered,  with  costs  to  abide  the  event. 

Parker,  C.  J.,  and  Martin,  Cullen,  and  Werner,  JJ.  concur. 
Bartlett,  J.,  concurs  in  result.    Haight,  J.,  absent. 

Judgment  reversed,  etc. 


HENKEL  V.  WABASH,  P.  T.  R.  CO. 

Pennsylvania,  1906.     213  Pa.  485. 

Feu.,  J.  This  action  was  to  recover  the  value  of  land  taken 
by- the  defendant  company  under  the  right  of  eminent  domain 
for  the  purpose  of  building  a  station.  The  specifications  of 
error  all  relate  to  the  admission  of  testimony  offered  by  the  de- 
fendant. The  main  groimd  of  the  appellant's  complaint  is  that 
the  defendant  was  allowed  to  prove  the  circumstances  at- 
tending the  sale  of  two  properties  in  the  immediate  vicinity.  The 
plaintiff's  counsel  had  called  the  attention  of  witnesses  on  both 
sides  to  these  sales,  his  own  in  their  examination  in  chief,  and 
on  the  cross-examination  of  the  defendant's  witnesses  he  had 
sho'\\Ti  the  prices  paid.  On  the  cross-examination  of  the  plain- 
tiff's witnesses  it  appeared  that  one  of  them  had  based  his  opinion 
of  the  value  of  the  plaintiff's  property  entirely  on  one  of  these 
sales,  and  that  another  witness  had  based  his  opinion  mainly, 
if  not  exclusively,  on  the  two  sales.  The  prices  paid  for  these 
properties  thus  became  a  standard  of  value  of  property  in  the 
vicinity.  The  defendant's  offer  was  not  to  show  the  prices  paid 
for  these  two  properties,  but  to  prove  by  the  purchasers  that  the 
sales  were  made  under  special  circumstances,  and  that  the  prices 
were  greatly  in  excess  of  the  market  values  and  were  not  a  cri- 
terion thereof. 

It  has  been  long  established  that  the  proper  test  of  the  value  of 
land  taken  under  the  right  of  eminent  domain  is  its  market  value, 
and  that  this  value  is  not  to  be  ascertained  by  proof  of  particular 
sales,  but  by  the  general  selling  price  of  land  similarly  situated. 
While  particular  sales  may  not  be  proved  as  establishing  a  market 
value,  the  good  faith  of  a  witness  and  the  accuracy  and  extent 
of  his  knowledge  may  be  tested  by  questioning  him  as  to  par- 
tir-ular  sales,  to  ascertain  whether  he  knew  of  and  considered 
them   in   forming  an   opinion.      These  inquiries   go   directly  to 


EMINENT  DOMAIN.  597 

the  value  of  the  opinion  expressed.  We  see  no  reason  why  a 
party  against  whose  interest  a  witness  has  testified  may  not  show 
that  the  opinion  expressed  is  valueless  as  evidence,  because 
it  is  founded  on  a  misapprehension  of  the  facts,  as  that  a  sup- 
posed sale  has  never  been  made,  or  that  the  consideration  named 
was  fictitious,  or  that  the  sale  had  been  without  regard  to  the 
market  value.  This  does  not  lead,  as  would  the  proof  of  par- 
ticular sales,  to  the  trial  of  collateral  issues.  It  goes  only  to  im- 
pair the  value  of  an  opinion  which  has  become  evidence  in  the 
case  by  showing  that  it  is  based  on  a  misapprehension  of  the  real 
facts. 

The  assignments  of  error  are  overruled,  and  the  judgment  is 
affirmed. 


IN  RE  CITY  OF  NEW  YORK. 

New  York,  1907.     107  N.  Y.  Supp.  567. 

BiscHOFF,  J.  The  award  for  parcels  Nos.  1  and  2  in  this  pro- 
ceeding involves  an  inconsistency  which  requires  that  the  report 
be  sent  back  to  the  commissioners  for  further  consideration. 
These  parcels  comprised  the  larger  part  of  the  block  bounded 
by  Fifteenth  and  Sixteenth  streets,  Tenth  avenue,  and  the  North 
river;  and  the  whole  block  was  in  single  ownership  of  the  es- 
tate of  Bradish  Johnson,  a  corporation,  and  leased  to  the  Central 
Railroad  of  New  Jersey  for  the  purposes  of  a  freightyard,  at 
a  net  annual  rent  of  $55,000  under  a  lease,  made  in  the  year 
1892,  to  endure  for  21  years.  The  commisioners  have  awarded 
to  the  owner  for  the  land  and  bulkhead  rights  taken  the  sum 
of  $752,000,  and  to  the  tenant  $48,000,  and  have  apportioned 
the  rent  of  the  land  not  taken  in  the  sum  of  $12,000  per  annum. 

The  gross  award  for  all  interests  in  these  parcels  is  thus  $800,- 
000 ;  and,  if  the  lease  was  a  fair  measure  of  the  value  of  the  land, 
the  apportionment  of  rent  discloses  that  the  tenant  had  agreed 
to  pay  $43,000  a  year  net  for  the  land  taken.  Thus  a  value  of 
over  $1,000,000  is  indicated,  at  the  ordinary  investment  rate, 
which  measures  the  value  of  the  land  under  a  lease  of  this  char- 
acter, and  the  award  of  $800,000  would  appear,  upon  this 
basis,  to  be  quite  inadequate.  There  was  expert  evidence,  how- 
ever, that  the  rent  reserved  in  the  lease  was  too  high ;  and,  while 
this  proof  was  not  of  a  very  satisfactory  character,  it  may  be 


598  EMINENT  DOMAIN. 

that  it  could  siit'liee  for  acceptance  by  the  commissioners  without 
disapproval  by  the  court,  in  view  of  the  court's  limited  power 
to  review  the  eviilence  in  these  proceedings,  but  if,  upon  this 
theory,  the  nwaid  to  the  owner  may  be  deemed  adequate,  the 
tenant  must  .ecessarily  have  made  a  very  bad  bargain  and  was 
benetited  by  being  relieved  of  thu  grater  part  of  its  burden.  But 
the  tenant  has  been  awarded  $48,000 ;  and  since  an  allowance  for 
fixtures  could  not,  upon  the  evidence,  have  well  exceeded  $20,- 
000,  it  is  clear  that  a  large  sum  has  been  allowed  for  the  loss  of 
the  lease.  It  is  impossible  to  say  that  the  tenant  was  damaged  if 
the  rent  reserved  was  too  high  for  this  class  of  property ;  and  if 
it  was  not  too  high,  the  owner's  award  is  inadequate  by  some 
$200,000,  an  amount  which,  in  no  possible  aspect  of  the  proof, 
could  be  applied  as  an  offset  for  benefit  to  the  remaining  prop- 
erty. 

The  award  to  the  Consolidated  Gas  Company,  the  owner  of 
adjacent  property,  is  to  some  degree  involved,  since,  while  the 
character  of  the  parcels  is  not  the  same,  in  the  uses  to  which  they 
may  be  put,  the  value  of  one  parcel  bears  upon  the  value  of  the 
other  because  of  their  similarity  of  situation,  and  therefore  the 
awards  as  to  all  parcels  should  be  reconsidered. 

Certain  objections  which  have  been  presented,  may  properly  be 
passed  upon  at  the  present  time,  notwithstanding  that  the  re- 
port, as  it  stands,  cannot  be  confirmed.  The  contention  that 
benefits  should  be  eliminated  in  the  fixing  of  awards  is  met  by 
the  recent  decision  of  the  Appellate  Division  in  Matter  of  North 
River  between  West  Eighteenth  and  West  Twenty-Third  streets, 
118  App.  Div.  865,  105  N.  Y.  Supp.  750,  and  the  benefits  ac- 
cruing from  the  improvement  were  thus  properly  considered 
by  the  commissioners. 

The  Consolidated  Gas  Company  objects  to  the  disallowance  of 
compensation  for  damages  suffered  by  it  through  the  lessened 
value  of  its  equipment  in  the  streets  of  the  city  by  reason  of 
the  taking  of  its  gas  tanks  in  this  proceeding,  the  property  re- 
ferred to  being  in  the  form  of  gas  mains  laid  in  the  city  streets 
and  fed  by  these  tanks.  If  these  mains  were  laid  in  the  streets 
under  a  license  from  the  city  merely,  the  claimant  necessarily 
would  be  at  the  risk  of  being  required  to  remove  the  property 
or  to  change  its  position  when  public  convenience  demanded  it 
(Matter  of  Deering,  93  N.  Y.  361),  and  the  bringing  of  this  pro- 
ceeding would  serve  in  effect  as  the  revocation  of  a  license  by 


EMINENT  DOMxUN.  599 

the  eity,  so  far  as  it  was  revocable  (Kingsland  v.  Mayor,  110  N. 
Y.  569,  18  N.  E.  435)  ;  but  it  is  claimed  that  the  right  to  lay 
these  mains  in  the  streets  existed  by  virtue  of  the  claimant's 
charter,  and  that  the  city  was  not  in  a  position  to  interfere  with 
the  rights  so  acquired.  This  contention  I  take  to  be  untenable. 
The  origin  of  the  claim  to  a  right  to  lay  gas  mains  in  the  streets, 
so  far  as  a  right  is  deemed  to  have  accrued  to  this  claimant,  is  a 
certain  franchise  granted  to  the  Municipal  Gas  Light  Company 
by  the  city  on  March  22,  1877.  The  Municipal  Gas  Light  Com- 
pany was  one  of  the  constituent  companies  of  the  claimant  corpo- 
ration, but  the  franchise  referred  to  contained  the  following 
provision : 

' '  Neither  said  permission  nor  any  right  conferred  on  said  com- 
pany by  said  resolution  shall  be  assigned  or  transferred  without 
the  previous  consent  of  the  common  council." 

Upon  the  consolidation  which  took  place  and  which  resulted 
in  the  formation  of  the  claimant,  the  Consolidated  Gas  Company, 
under  chapter  367,  p.  448,  Laws  1884,  such  rights  as  were  pos- 
sessed by  the  constituent  companies  passed  to  the  corporation 
thus  formed,  but  no  greater  rights  were  acquired  than  were 
originally  possessed;  and,  failing  the  consent  of  the  common 
council,  there  appears  to  have  been  no  warrant  in  law  for  this 
claimant's  maintenance  of  the  gas  mains  in  these  streets.  In 
this  view,  the  claimant  took  no  rights  in  the  matter  which  could 
survive  the  city 's  determination  to  revoke  the  permission  deemed 
to  have  been  granted  to  the  Municipal  Gas  Light  Company  to  lay 
the  mains,  and  there  was  no  damage  which  could  be  made  the 
subject  of  compensation  in  this  proceeding  because  of  the  dimi- 
nution in  the  value  of  the  property  thus  placed  in  the  streets. 
Again,  it  would  appear  that  the  commissioners  had  no  authority 
to  award  damages  for  property  not  embraced  within  the  area  of 
the  improvement.  The  matter  is  regulated  by  section  822  of  the 
charter,  which  limits  the  award  of  damages  to  compensation  for 
the  property  taken,  and  does  not  appear  to  include,  by  inference, 
consequential  injury  to  the  business  of  the  owner  elsewhere  in 
the  city  by  reason  of  the  taking  of  the  land. 

The  objection  that  the  commissioners  failed  to  make  an  al- 
lowance for  "plottage" — a  supposed  enhancement  of  value  by 
reason  of  the  fact  that  the  parcels,  of  which  this  claimant  was  the 
owner,  were  in  a  single  ownership — is  met  in  the  finding  of 
the  commissioners  that  as  a  matter  of  fact  in  these  instances  no 


600  EMINENT  DOMAIN. 

such  added  value  did  exist.  The  question  whether  or  not  "plot- 
tage" is  an  element  of  value  depends  necessarily  upon  the  evi- 
dence of  the  particular  circumstances  surrounding  the  use  of 
the  property  and  its  situation,  and  there  is  no  rule  of  law  that 
"plottage,"  taken  alone,  must  have  a  value  in  every  case. 

It  is  also  objected  by  both  claimants  that  the  commissioners 
refused  to  state  what  additional  value  was  given  to  the  land  be- 
cause of  the  fact  that  the  land  and  the  bulkhead  rights  belonged, 
in  each  instance,  to  the  same  claimant.  The  report  contains  the 
statement  that  the  commissioners  have  taken  into  consid- 
eration and  account  the  fact  that  the  ownership  of  the  bulkhead 
and  bulkhead  rights  and  the  lands  immediately  adjacent  were 
in  the  same  owners,  and  have  found  that  this  fact  increases  the 
value  of  the  land  taken,  and  have  included  such  increase  in 
value  in  their  awards.  This  statement  appears  to  be  all  that 
can  properly  be  required  within  the  ruling  of  Board  of  Water 
Commissioners  v.  Shutts,  25  App.  Div.  22. 

For  the  reasons  stated,  the  motion  to  confirm  the  report  is 
denied,  and  the  report  will  be  sent  back  to  the  commissioners  for 
further  consideration  of  the  aw^ards  made. 

Motion  denied  and  report  sent  back. 

In  proceedings  to  condemn  land  for  cemetery  purposes,  the  court 
may  consider  any  use  to  which  the  property  may  be  profitably  ap- 
propriated; yet  it  is  not  necessary  to  presume  that  the  land  would 
ever  be  put  to  any  other  use  than  that  to  which  it  is  at  present  de- 
voted.    Phillips  V.  Town  of  Scales  Mound,  195  111,  353. 

The  measure  of  damages  for  land  taken  by  a  railroad  is  the  differ- 
ence in  the  market  value  of  the  tract,  as  a  whole,  before  taking  and 
afterwards.  Profits  of  business  cannot  be  recovered  in  condemnation 
proceedings,  particularly  speculative  profits,  such  as  profits  from  raising 
50,000  ducks  per  year  on  a  farm.  Cos.  v.  Phila.  H.  &  P.  Co.,  215 
Pa.  506. 

Where  a  quarry  is  condemned  under  eminent  domain,  the  proper 
measure  of  damages  is  the  actual  value  of  the  stone  in  place,  and  not 
the  value  of  that  stone  when  cut  and  sold  in  the  market.  Cole  v. 
Ell  wood  Power  Co.,  216  Pa.  203. 

See  as  to  rule  of  damages,  where  the  entire  use  of  a  house  is  taken, 
Hutchins  v.  Munn,  209  U.  S.  246. 

Diversion  of  traffic  is  not  an  element  of  compensation  in  condemna- 
tion  proceedings.     Chicago  v.  Lonergan.   106  111.   518. 

Increased  danger  from  fire  and  increased  danger  to  live  stock  can 
be  considered.     Chicago  S.  Ry.  Co.  v.  Nolin,  221  111.  373. 

Substantial  damages  may  be  awarded  for  interference  with  an  ease- 
ment of  an  adjoining  owner  by  smoke,  ashes,  vibration,  dust,  dirt  and 


EMINEXT  DOMAIN.  601 

drippings,  caused  by  the  operation  of  a  railroad.  L.  I.  R.  R.  Co.  v. 
Garvey,  159  N.  Y.  334.  See,  too,  Monday  Mfg.  Co.  v.  Penn.  R.  R. 
215  Pa.  110. 

An  award  to  the  owner,  made  after  the  construction  of  a  reservoir 
should  include  the  value  of  the  construction  and  work  placed  upon 
the  land.  The  true  inquiry  is:  How  much  do  the  improvements 
enhance  the  value  of  the  owner's  land?  Village  of  Johnsville  v. 
Smith,  181  N.  Y.  341. 


XL    VALUE. 
KOUNTZ  V.  KIRKPATRICK. 

Pennsylvania,  1872.    72  Pa.  376. 

Action  of  assumpsit  brought  August  30,  1870,  by  Joseph  Kirk- 
patrick  and  James  Lyons,  trading  as  Kirkpatrick  &  Lyons,  to 
the  use  of  Frederick  Fisher  &  others,  trading  as  Fisher  Brothers, 
against  William  J.  Kountz,  for  refusal  to  deliver  2,000  barrels 
of  crude  petroleum  under  a  written  contract  of  sale  made  on  the 
7th  day  of  June,  1869. 

The  verdict  was  for  plaintiffs  for  $3,753 ;  the  defendant  took 
out  a  writ  of  error. 

Agnew,  j.     *     *     * 

The  act  of  Kirkpatrick  &  Lyons,  complained  of  as  members 
of  an  unlawful  combination  to  raise  the  price  of  oil,  was  long 
subsequent  to  their  assignment  of  Kountz 's  contract,  and  was 
a  mere  tort.  The  contract  was  affected  only  by  its  results  as 
an  independent  act.  It  does  not  seem  just,  therefore,  to  visit 
this  effect  upon  Fisher  &  Brothers,  the  antecedent  assignees. 
The  act  is  wholly  collateral  to  the  ownership  of  the  chose  itself, 
and  there  is  nothing  to  link  it  to  the  chose,  so  as  to  bind  the 
assignors  and  assignees  together.  After  the  assignment,  there 
being  no  guaranty,  the  assignors  had  no  interest  in  the  perform- 
ance of  this  particular  contract,  and  no  motive,  therefore,  aris- 
ing out  of  it  to  raise  the  price  on  Kountz.  The  acts  of  Kirk- 
patrick &  Lyons  seem,  therefore,  to  have  no  greater  or  other 
bearing  on  this  contract  than  the  acts  of  any  other  members  of 
the  combination,  who  were  strangers  to  the  contract. 

In  regard  to  notice  of  the  assignment  to  Kountz,  it  is  argued, 
that  having  had  no  notice  of  it,  if  he  knew  of  the  conspiracy  to 
raise  the  price  of  oil,  and  thus  to  affect  his  contract,  and  that 
Kirkpatrick  &  Lyons  were  parties  to  it,  he  might  have  relied 
on  that  fact  as  a  defense,  and  refused  to  deliver  the  oil,  and 
claimed  on  the  trial  a  verdict  for  merely  nominal  damages  for 
his  breach  of  his  contract.  Possibly  in  such  a  special  case, 
want  of  notioe  might  have  constituted  an  equity,  but  the  answer 

602 


VALUE.  603 

to  this  case  is,  that  no  such  point  was  made  in  the  court  below, 
and  there  does  not  seem  to  be  any  evidence  that  Kountz  knew 
of  the  conspiracy,  and  Kirkpatrick  &  Lyons 's  privity,  and  rely- 
ing on  these  facts,  desisted  from  purchasing  oil  to  fulfil  his  con- 
tract with  them.  As  the  case  stood  before  the  court  below,  we 
discover  no  error  in  the  answers  of  the  learned  judge  on  this 
part  of  it. 

The  next  question  is  upon  the  proper  measure  of  damages. 
In  the  sale  of  chattels,  the  general  rule  is,  that  the  measure  is 
the  difference  between  the  contract  price  and  the  market  value 
of  the  article  at  the  time  and  place  of  delivery  under  the  con- 
tract. It  is  unnecessary  to  cite  authority  for  this  well  estab- 
lished rule,  but  as  this  case  raises  a  novel  and  extraordinary 
question  between  the  true  market  value  of  the  article,  and  a 
stimulated  market  price,  created  by  artificial  and  fraudulent 
practices,  it  is  necessary  to  fix  the  true  meaning  of  the  rule  it- 
self, before  we  can  approach  the  real  question.  Ordinarily, 
when  an  article  of  sale  is  in  the  market,  and  has  a  market 
value,  there  is  no  difference  between  its  value  and  the  market 
price,  and  the  law  adopts  the  latter  as  the  proper  evidence  of  the 
value.  This  is  not,  however,  because  value  and  price  are  really 
convertible  terms,  but  only  because  they  are  ordinarily  so  in 
a  fair  market.  The  primary  meaning  of  value  is  worth,  and  this 
worth  is  made  up  of  the  useful  or  estimable  qualities  of  the 
thing.     See  "Webster's  and  Worcester's  Dictionaries. 

Price,  on  the  other  hand,  is  the  sum  in  money  or  other  equiva- 
lent set  upon  an  article  by  a  seller,  which  he  demands  for  it: 
Id.  Ihid.  Value  and  price  are,  therefore,  not  synonyms,  or 
the  necessary  equivalents  of  each  other,  though  commonly,  mar- 
ket value  and  market  price  are  legal  equivalents.  When  we 
examine  the  authorities,  we  find  also  that  the  most  accurate 
writers  use  the  phrase  market  value,  not  market  price.  Mr. 
Sedgwick,  in  his  standard  work  on  the  measure  of  damages, 
4th  ed,  p.  260,  says:  "Where  contracts  for  the  value  of  chat- 
tels are  broken  by  the  vendor's  failing  to  deliver  property  ac- 
cording to  the  terms  of  the  bargain,  it  seems  to  be  well  settled, 
as  a  general  rule,  both  in  England  and  the  United  States,  that 
the  measure  of  damages  is  the  difference  between  the  contract 
price  and  the  market  value  of  the  article  at  the  time  it  should 
be  delivered  upon  the  ground;  that  this  is  the  plaintiff's  real 
loss,  and  that  with  this  sum,  he  can  go  into  the  market  and 


604  VALUE. 

supply  himself  with  the  same  article  from  another  vendor," 
Judge  Rogers  uses  the  same  term  iu  Smethurst  v.  Woolston,  5 
AV.  &  8.  109 :  ' '  The  value  of  the  article  at  or  about  the  time 
it  is  to  be  delivered,  is  the  measure  of  damages  in  a  suit  by  the 
vendee  against  the  vendor  for  a  breach  of  the  contract."  So  said 
C.  J.  Tilghman,  in  Girard  v.  Taggart,  5  S.  &  R.  32.  Judge  Ser- 
geant, also,  in  O  'Conner  v.  Forster,  10  Watts,  422,  and  in  Mott 
V.  Danforth,  6  id.  308.  But  as  even  accurate  writers  do  not 
always  use  words  in  a  precise  sense,  it  would  be  unsatisfactory 
to  rely  on  the  common  use  of  a  word  only,  in  making  a  nice  dis- 
tinction between  terms.  It  is  therefore  proper  to  inquire  into 
the  true  legal  idea  of  damages  in  order  to  determine  the  proper 
definition  of  the  term  value.  Except  in  those  cases  where  op- 
pression, fraud,  malice  or  negligence  enter  into  the  question, 
"the  declared  object  (says  Air.  Sedgwick,  in  his  work  on  Dam- 
ages) is  to  give  compensation  to  the  party  injured  for  the  actual 
loss  sustained,"  4th  ed.,  pp.  28,  29;  also,  pp.  36,  37.  Among 
the  many  authorities  he  gives,  he  quotes  the  language  of  C.  J. 
Shippen,  in  Bussy  v.  Donaldson,  4  Dallas,  206.  "As  to  the  as- 
sessment of  damages  (said  he),  it  is  a  rational  and  legal  prin- 
ciple, that  the  compensation  should  be  equivalent  to  the  injury." 
"The  rule,"  said  C.  J.  Gibson,  "is  to  give  actual  compensa- 
tion, by  graduating  the  amount  of  the  damages  exactly  to  the 
extent  of  the  loss."  "The  measure  is  the  actual,  not  the  specu- 
lative loss:"  Forsyth  v.  Palmer,  2  Harris,  97.  Thus,  compen- 
sation being  the  true  purpose  of  the  law,  it  is  obvious  that  the 
means  employed,  in  other  words,  the  evidence  to  ascertain  com- 
pensation, must  be  such  as  truly  reaches  this  end. 

It  is  equally  obvious,  when  we  consider  its  true  nature,  that 
as  evidence,  the  market  price  of  an  article  is  only  a  means  of 
arriving  at  compensation ;  it  is  not  itself  the  value  of  the  article, 
but  is  the  evidence  of  value.  The  law  adopts  it  as  a  natural 
inference  of  fact,  but  not  as  a  conclusive  legal  presumption.  It 
stands  as  a  criterion  of  value,  because  it  is  a  common  test  of  the 
ability  to  purchase  the  thing.  But  to  assert  that  the  price 
asked  in  the  market  for  an  article  is  the  true  and  only  test  of 
value,  is  to  abandon  the  proper  object  of  damages,  viz.,  compen- 
sation, in  all  those  cases  where  the  market  evidently  does  not 
afford  the  true  measure  of  value.  This  thought  is  well  expressed 
by  Lewis,  C.  J.,  in  Bank  of  Montgomery  v.  Reese,  2  Casey,  146. 
"The  paramount  rule  in  assessing  damages   (he  says),  is  that 


VALUE.  605 

every  person  unjustly  deprived  of  his  rights,  should  at  least  be 
fully  compensated  for  the  injury  he  sustained.  Where  articles 
have  a  determinate  value  and  an  unlimited  production,  the  gen- 
eral rule  is  to  give  their  value  at  the  time  the  owner  vras  de- 
prived of  them,  with  interest  to  the  time  of  verdict.  This  rule 
has  been  adopted  because  of  its  convenience,  and  because  it  in 
general  answers  the  object  of  the  law,  which  is  to  compensate 
for  the  injury.  In  relation  to  such  articles,  the  supply  usually 
keeps  pace  with  the  demand,  and  the  fluctuations  in  the  value 
are  so  inconsiderable  as  to  justify  the  courts  in  disregarding 
them  for  the  sake  of  convenience  and  uniformity.  In  these 
cases,  the  reason  why  the  value  at  the  time  of  conversion,  with 
interest,  generally  reaches  the  justice  of  the  case,  is  that  when 
the  owner  is  deprived  of  the  articles,  he  may  purchase  others  at 
that  price.  But  it  is  manifest  that  this  would  not  remunerate 
him  where  the  article  could  not  be  obtained  elsewhere,  or  where 
from  restrictions  on  its  production,  or  other  causes,  its  price  is 
necessarily  subject  to  considerable  fluctuation."  This  shows 
that  the  market  price  is  not  an  in^'arible  standard,  and  that  the 
converse  of  the  case  then  before  Judge  Lewis  is  equally  true — 
that  is  to  say — when  the  market  price  is  unnaturally  inflated  by 
unlawful  and  fraudulent  practices,  it  cannot  be  the  true  means 
of  ascertaining  what  is  just  compensation.  It  is  as  unjust  to 
the  seller  to  give  the  purchaser  more  than  just  compensation, 
as  it  is  to  the  purchaser  to  give  him  less.  Right  upon  this 
point,  we  have  the  language  of  this  court  in  the  case  of  a  refusal 
by  a  purchaser  to  accept:  Andrews  v.  Hoover,  8  Watts,  240. 
It  is  said :  "The  jury  is  bound  by  a  measure  of  damages  where 
there  is  one,  but  not  always  by  a  particular  means  for  its  ascer- 
tainment. Now  the  measure  in  a  case  like  the  present,  is  the  dif- 
ference between  the  price  contracted  to  be  paid  and  the  value 
of  the  thing  when  it  ought  to  have  been  accepted;  and  though 
a  resale  is  a  convenient  and  often  satisfactory  means,  it  does  not 
follow  that  it  is,  nor  was  it  said  in  Girard  v.  Taggart,  to  be  the 
only  one.  On  the  contrary,  the  propriety  of  the  direction  there, 
that  the  jury  were  not  bound  by  it,  if  they  could  find  another 
more  in  accordance  with  the  justice  of  the  case,  seems  to  have 
been  admitted;  the  very  thing  complained  of  here."  Judge 
Strong  took  the  same  view  in  Trout  v.  Kennedy,  11  Wright,  393. 
That  was  the  case  of  a  trespasser,  and  the  jury  had  been  told 
that  the  plaintiff  was  entitled  to  the  just  and  full  value  of  the 


606  VALUE. 

property,  and  if  at  the  time  of  the  trespass  the  market  was 
depressed,  too  much  importance  was  not  to  be  given  to  that 
fact.  "If  (says  Judge  Strong)  at  any  particuhir  time,  there  be 
no  market  demand  for  an  article,  it  is  not  of  course  on  that  ac- 
count of  no  value.  What  a  thing  will  bring  in  the  market  at 
a  given  time,  is  perhaps  the  measure  of  its  value  then ;  but  it  is 
not  the  only  one."  These  cases  plainly  teach  that  value  and 
market  price  are  not  always  convertible  terms;  and  certainly 
tliere  can  be  no  difference  in  justice  or  law,  in  an  unnatural 
depression  and  an  unnatural  exaltation  in  the  market  price — 
neither  is  the  true  and  only  measure  of  value. 

These  general  principles  in  the  doctrine  of  damages  and  au- 
thorities, prove  that  an  inflated  speculative  market  price,  not 
the  result  of  natural  causes,  but  of  artificial  means  to  stimulate 
prices  by  unlawful  combinations  for  the  purposes  of  gain,  can- 
not be  a  legitimate  means  of  estimating  just  compensation.  It 
gives  to  the  purchaser  more  than  he  ought  to  have,  and  compels 
the  seller  to  pay  more  than  he  ought  to  give,  and  it  is  therefore 
not  a  just  criterion.  There  is  a  case  in  our  own  state,  bearing 
strongly  on  this  point :  Blyenburgh  et  al.  v.  Welsh  et  al.,  Bald- 
win's  Rep.  331.  Judge  Baldwin  had  charged  the  jury  in  these 
words:  "If  you  are  satisfied  from  the  evidence,  that  there  was 
on  that  day  a  fixed  price  in  the  market,  you  must  be  governed 
by  it;  if  the  evidence  is  doubtful  as  to  the  price,  and  witnesses 
vary  in  their  statements,  you  must  adopt  that  which  you  think 
best  accords  with  the  proof  in  the  case. ' '  In  granting  a  new  trial. 
Judge  Hopkinson  said:  "It  is  the  price — the  market  price — of 
the  article  that  is  to  furnish  the  measure  of  damages.  Now  what 
is  the  price  of  a  thing,  particularly  the  market  price?  We  con- 
sider it  to  be  the  value,  the  rate  at  which  the  thing  is  sold.  To 
make  a  market,  there  must  be  buying  and  selling,  purchase  and 
sale.  If  the  oAvner  of  an  article  holds  it  at  a  price  which  nobody 
will  give  for  it,  can  that  be  said  to  be  its  market  value?  Men 
sometimes  put  fantastical  prices  upon  their  property.  For  rea- 
sons personal  and  peculiar,  they  may  rate  it  much  above  what 
any  one  would  give  for  it.  Is  that  the  value?  Further,  the 
holders  of  an  article,  flour,  for  instance,  under  a  false  rumor, 
which,  if  true,  would  augment  its  value,  may  suspend  their  sales, 
or  put  a  price  upon  it,  not  according  to  its  value  in  the  actual 
state  of  the  market,  but  according  to  what  in  their  opinion  will 
be  its  market  price  or  value,  provided  the  rumor  shall  prove  to 


VALUE.  607 

be  true.  In  such  a  case,  it  is  clear,  that  the  asking  price  is  not 
the  worth  of  the  thing  on  the  given  day,  but  what  it  is  sup- 
posed it  will  be  worth  at  a  future  day,  if  the  contingency  shall 
happen  which  is  to  give  it  this  additional  value.  To  take  such 
a  price  as  the  rule  of  damages,  is  to  make  the  defendant  pay 
what  in  truth  never  was  the  value  of  the  article,  and  to  give 
to  the  plaintiff  a  profit  by  a  breach  of  the  contract,  which  he 
never  would  have  made  by  its  performance." 

The  case  of  suspended  sales  upon  a  rumor  tending  to  enhance 
the  price,  put  by  Judge  Hopkinson,  bears  no  comparison  to  the 
case  alleged  here,  where  a  combination  is  intentionally  formed 
to  buy  up  oil,  hold  it  till  the  year  is  out,  and  thus  force  the 
market  price  up  purposely  to  affect  existing  contracts,  and  com- 
pel the  sellers  to  pay  heavy  damages  for  nonfulfillment  of  their 
bargains.  In  the  same  case,  Judge  Hopkinson  further  said:  "We 
did  not  intend  that  they  (the  jury)  should  go  out  of  the  limits 
of  the  market  price,  nor  to  take  as  that  price  whatever  the  hold- 
ers of  the  coffee  might  choose  to  ask  for  it ;  substituting  a  ficti- 
tious, unreal  value,  which  nobody  would  give,  for  that  at  which 
the  article  might  be  bought  or  sold."  "In  determining,"  says 
an  eminent  writer  on  contracts,  "what  is  the  market  value  of 
property  at  any  particular  time,  the  jury  may  sometimes  take 
a  wide  range ;  for  this  is  not  always  ascertainable  by  precise 
facts,  but  must  sometimes  rest  on  opinion ;  and  it  would  seem 
that  neither  party  ought  to  gain  or  lose  by  a  mere  fancy  price, 
or  an  mflated  and  accidental  value,  suddenly  put  in  force  by 
some  speculative  movement,  and  as  suddenly  passing  away.  The 
question  of  damages  by  a  market  value  is  peculiarly  one  for  a 
jury:"  Parsons  on  Contracts,  vol.  2,  p.  482,  ed.  1857.  In  Smith 
V.  Griffith.  3  Hill,  337-8.  C.  J.  Nelson  said:  ''I  admit  that  a 
mere  speculating  price  of  the  article,  got  up  by  the  contrivance 
of  a  few  interested  dealers,  is  not  the  true  test.  The  law,  in 
regulating  the  measure  of  damages,  contemplates  a  range  of  the 
entire  market,  and  the  average  of  prices,  as  thus  found,  run- 
ning through  a  reasonable  period  of  time.  Neither  a  sudden  and 
transient  inflation,  nor  a  depression  of  prices,  should  control  the 
question.  These  are  often  accidental,  promoted  by  interested 
and  illegitimate  combinations,  for  temporary,  special  and  selfish 
objects,  independent  of  the  objects  of  lawful  commerce ;  a  forced 
and  violent  perversion  of  the  laws  of  trade,  not  within  the  con- 
templation of  the  regular  dealer,  and  not  deserving  to  be  re- 


608  VALUE. 

gartlcd  as  a  proper  basis  upon  which  to  determine  the  value, 
when  the  fact  becomes  material  in  the  administration  of  justice." 
I  may  close  these  sayings  of  eminent  jurists  with  the  language 
of  Chief  Justice  Gibson,  upon  stock-jobbing  contracts;  Wilson 
V.  Davis,  5  W.  &  S.  523:  "To  have  stipulated,"  says  he,  "for 
a  right  to  recruit  on  separate  account,  would  have  given  to  the 
agreement  an  appearance  of  trick,  like  those  of  stock-jobbing  con- 
tracts, to  deliver  a  given  number  of  shares  at  a  certain  day,  in 
which  the  seller's  performance  has  been  forestalled  by  what  is 
called  cornering ;  in  other  words,  buying  up  all  the  floating  shares 
in  the  market.  These  contracts,  like  other  stock- jobbing  trans- 
actions, in  which  parties  deal  upon  honor,  are  seldom  subjected 
to  the  test  of  judicial  experiment,  but  they  would  necessarily 
be  declared  fraudulent." 

"Without  adding  more,  I  think  it  is  conclusively  sho^vr  that 
what  is  called  the  market  price,  or  the  quotations  of  the  articles 
for  a  given  day,  is  not  always  the  only  evidence  of  actual  value, 
but  that  the  true  value  may  be  drawn  from  other  sources,  when 
it  is  shown  that  the  price  for  the  particular  day  had  been  un- 
naturally inflated.  It  remains  only  to  ascertain  whether  the 
defendant  gave  such  evidence  as  to  require  the  court  to  submit 
to  the  jury  to  ascertain  and  determine  the  fair  market  value  of 
crude  oil  per  gallon,  on  the  31st  of  December,  1869,  as  demanded 
by  the  defendant  in  his  fifteenth  point.  There  was  evidence  frori 
which  the  jury  might  have  adduced  the  following  facts,  viz.: 
That  in  the  month  of  October,  1869,  a  number  of  persons  of  large 
capital,  and  am^ong  them  Kirkpatrick  &  Lyons,  combined  to- 
gether to  purchase  crude  oil,  and  hold  it  until  the  close  of  the 
year  1869;  that  these  persons  were  the  holders,  as  purchasers, 
of  a  large  number  of  sellers'  option  contracts,  similar  to  the  one 
in  suit ;  that  they  bought  oil  largely,  and  determined  to  hold  it 
from  the  market  until  the  year  1870  before  selling ;  that  oil,  in 
consequence  of  this  combination,  ran  up  in  price,  in  the  face 
of  an  increased  supply,  until  the  31st  day  of  December,  1869, 
reaching  the  price  of  seventeen  to  eighteen  cents  per  gallon,  and 
then  suddenly  dropped  as  soon  as  the  year  closed.  Major  Frew, 
one  of  the  number  saj^s :  It  was  our  purpose  to  take  the  oil,  pay 
for  it,  and  keep  it  until  January  1st,  1870,  otherwise  we  would 
have  been  heading  the  market  on  ourselves.  JMr.  Loup'  says  that 
on  the  3d  of  January,  1870,  he  sold  oil  to  Fisher  &  Brother  (the 
plaintiffs)    at  thirteen  cents  a  gallon,  and  could  i'lv.l  no  other 


VALUE.  609 

purchaser  at  that  price.  Several  witnesses,  dealers  in  oil,  tes- 
tified that  they  knew  of  no  natural  cause  to  create  such  a  rise  in 
price,  or  to  make  the  difference  in  price  from  December  to  Jan- 
uary. It  was  testified,  on  the  contrary,  that  the  winter  pro- 
duction of  oil  was  greater  in  December,  1869,  than  in  former 
years  by  several  thousand  barrels  per  day,  a  fact  tending  to 
reduce  the  price,  when  not  sustained  by  other  means.  Mr. 
Benn  says  he  knew  no  cause  for  the  sudden  fall  in  price  on  the 
1st  of  January,  1870,  except  that  the  so-called  combination 
ceased  to  buy  at  the  last  of  December,  1869. 

It  was,  therefore,  a  fair  question  for  the  jury  to  determine 
whether  the  price  which  was  demanded  for  oil  on  the  last  day 
of  December,  1869,  was  not  a  fictitious,  unnatural,  inflated  and 
temporary  price,  the  result  of  a  combination  to  "bull  the  mar- 
ket," as  it  is  termed,  and  to  compel  sellers  to  pay  a  false  and 
swollen  price  in  order  to  fulfil  their  contracts.  If  so,  then  such 
price  was  not  a  fair  test  of  the  value  of  the  oil,  and  the  jury 
would  be  at  liberty  to  determine,  from  the  prices  before  and 
after  the  day,  and  from  other  sources  of  information,  the  actual 
market  value  of  the  oil  on  the  31st  of  December,  1869.  Any 
other  cause  would  be  unjust  and  injurious  to  fair  dealers,  and 
would  enable  gamblers  in  the  article  to  avail  themselves  of  their 
own  wrong,  and  to  wrest  from  honest  dealers  the  fruits  of  their 
business.  It  cannot  be  possible  that  a  "corner,"  such  as  took 
place  a  few  weeks  since  in  the  market  for  the  stock  of  a  western 
railroad  company,  where  shares,  worth  in  the  ordinary  market 
about  sixty  dollars  each,  were  by  the  secret  operations  of  two 
or  three  large  capitalists,  forced  up  in  a  few  days  to  a  price  over 
two  hundred  dollars  a  share,  can  be  a  lawful  measure  of  dam- 
ages. Men  are  not  to  be  stripped  of  their  estates  by  such  cruel 
and  wrongful  practices;  and  courts  of  justice  cannot  so  wholly 
ignore  justice  as  to  assume  such  a  false  standard  of  compensa- 
tion. Our  views  upon  the  effect  of  the  afSdavit  of  defense,  on 
which  the  learned  judge  in  a  great  measure  ruled  the  question 
of  damages,  will  be  expressed  in  the  case  of  Kountz  v.  The  Citi- 
zens' Oil  Refining  Co.,  in  an  opinion  to  be  read  immediately. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Sharswood  and  Williams,  JJ.,  dissented  on  the  question  of 
the  measure  of  damages. 


39 


610  VALUE. 

BOOM  CO.,  V.  PATTERSON. 
United  States  Supreme  Coiirt,  1878.    98  U.  S.  403. 

Field,  J.  The  plaintiff  in  error  is  a  corporation  created  under 
the  laws  of  JMinnesota  to  construct  boonis  betweens  certain  des- 
ignated points  on  the  Mississippi  and  Rum.  Rivers  in  that  state. 

*  *  *  The  defendant  in  error,  Patterson,  was  the  owner  in 
fee  of  an  entire  island  and  parts  of  two  other  islands  in  the 
]\lississippi  River  above  the  Falls  of  St.  Anthony,  in  the  county 
of  Anoka,  in  Minnesota.  These  islands  formed  a  line  of  shore, 
with  occasional  breaks,  for  nearly  a  mile  parallel  with  the  west 
bank  of  the  river,  and  distant  from  it  about  one-eighth  of  a  mile. 
The  land  o^\^led  by  him  amounted  to  a  little  over  thirty-four 
acres,  and  embraced  the  entire  line  of  shore  of  the  three  islands, 
with  the  exception  of  about  three  rods.  The  position  of  the 
islands  specially  fitted  them,  in  connection  with  the  west  bank 
of  the  river,  to  form  a  boom  of  extensive  dimensions,  capable 
of  holding  with  safety  from  twenty  to  thirty  millions  of  feet  of 
logs.  All  that  was  required  to  form  a  boom  a  mile  in  length 
and  one-eighth  of  a  mile  in  width  was  to  connect  the  islands  with 
each  other,  and  the  lower  end  of  the  island  farthest  down  the 
river  with  the  west  bank;  and  this  connection  could  be  readily 
made  by  boom  sticks  and  piers. 

The  land  on  these  islands  owned  by  the  defendant  in  error  the 
company  sought  to  condemn  for  its  uses;  and  upon  its  applica- 
tion commissioners  were  appointed  by  the  District  Court  to  ap- 
praise its  value.    They  awarded  to  the  owner  the  sum  of  $3,000. 

The  company  and  the  owner  both  appealed  from  this  award. 

*  *     * 

Upon  the  question  litigated  in  the  court  below,  the  compen- 
sation which  the  owner  of  the  land  condemned  was  entitled  to 
receive  and  the  principle  upon  which  the  compensation  should 
be  estimated,  there  is  less  difficulty.  In  determining  the 
value  of  land  appropriated  for  public  purposes,  the  same 
considerations  are  to  be  regarded  as  in  a  sale  of  property 
between  private  parties.  The  inquiry  in  such  cases  must 
be  what  is  the  property  worth  in  the  market,  viewed  not 
merely  with  reference  to  the  uses  to  which  it  is  at  the  time 
applied,  but  with  reference  to  the  uses  to  which  it  is  plainly 
adapted ;  that  is  to  say,  what  is  it  worth  from  its  availability  for 
valuable  uses.     Property  is  not  to  be  deemed  worthless  because 


VALUE.  611 

the  OAvner  allows  it  to  go  to  waste,  or  to  be  regarded  as  valueless 
because  he  is  unable  to  put  it  to  any  use.  Others  may  be  able  to 
use  it,  and  make  it  subserve  the  necessities  or  conveniences  of  life. 
Its  capability  of  being  made  thus  available  gives  it  a  market 
value  which  can  be  readily  estimated. 

So  many  and  varied  are  the  circumstances  to  be  taken  into  ac- 
count in  determining  the  value  of  property  condemned  for  pub- 
lic purposes,  that  it  is  perhaps  impossible  to  formulate  a  rule 
to  govern  its  appraisement  in  all  cases.  Exceptional  circum- 
stances will  modify  the  most  carefully  guarded  rule ;  but,  as  a 
general  thing,  we  should  say  that  the  compensation  to  the  owner 
is  to  be  estimated  by  reference  to  the  uses  for  which  the  prop- 
erty is  suitable,  having  regard  to  the  existing  business  or  wants 
of  the  community,  or  such  as  may  be  reasonably  expected  in  the 
immediate  future. 

The  position  of  the  three  islands  in  the  Mississippi  fitting  them 
to  form,  in  connection  with  the  west  bank  of  the  river,  a  boom 
of  immense  dimensions,  capable  of  holding  in  safety  over  twenty 
millions  of  feet  of  logs,  added  largely  to  the  value  of  the  lands. 
The  boom  company  would  greatly  prefer  them  to  more  valuable 
agricultural  lands,  or  to  lands  situated  elsewhere  on  the  river; 
as,  by  utilizing  them  in  the  manner  proposed,  they  would  save 
heavy  expenditures  of  money  in  constructing  a  boom  of  equal 
capacity.  Their  adaptability  for  boom  purposes  was  a  cir- 
cumstance, therefore,  which  the  OAMier  had  a  right  to  insist  upon 
as  an  element  in  estimating  the  value  of  his  lands. 

We  do  not  understand  that  all  persons  except  the  plaintiff  in 
error  were  precluded  from  availing  themselves  of  these  lands  for 
the  construction  of  a  boom,  either  on  their  o\^^l  account  or  for 
general  use.     *     *     * 

The  adaptability  of  the  lands  for  the  purpose  of  a  boom  was, 
therefore,  a  proper  element  for  consideration  in  estimating  the 
value  of  the  lands  condemned.  The  contention  on  the  part  of  the 
plaintiff  in  error  is,  that  such  adaptability  should  not  be  con- 
sidered, assuming  that  this  adaptability  could  never  be  7iiade 
available  by  other  persons,  by  reason  of  its  supposed  exclusive 
privileges ;  in  other  words,  that  by  the  grant  of  exclusive  priv- 
ileges to  the  company  the  o'wnor  is  deprived  of  the  value 
v.'hich  the  lands,  l)y  their  adaptal)i]ity  for  boom  purposes,  pre- 
vioiLslj''  possessed,  and  therefore  should  not  now  receive  anything 
from  the  company  on  accoimt  of  such  adaptability  upon  a  con- 


612  VALUE. 

denination  of  the  lands.  We  do  not  think  that  the  owner,  by  the 
charter  of  the  company,  lost  this  element  of  value  in  his  prop- 
erty. 

The  views  we  have  expressed  as  to  the  justness  of  considering 
the  peculiar  fitness  of  the  lands  for  particular  purposes  as  an 
element  in  estimating  their  value  find  support  in  the  several 
cases  cited  by  counsel.  Thus,  In  the  Matter  of  Furman  Street, 
(17  Wend.  669,)  where  a  lot  upon  which  the  owner  had  his 
residence  was  injured  by  cutting  down  an  embankment  in  open- 
ing a  street  in  the  city  of  Brooklyn,  the  Supreme  Court  of  New 
York  said  that  neither  the  purpose  to  which  the  property  was 
applied,  nor  the  intention  of  the  owner  in  relation  to  its  future 
enjoyment,  was  a  matter  of  much  importance  in  determining  the 
compensation  to  be  made  to  him ;  but  that  the  proper  inquiry  was, 
"What  is  the  value  of  the  property  for  the  most  advantageous 
uses  to  which  it  may  be  applied  ? "  In  Goodwin  v.  Cincinnati  & 
Whitewater  Canal  Co.  (18  Ohio  St.  169),  where  a  railroad  com- 
pany sought  to  appropriate  the  bed  of  a  canal  for  its  track,  the 
Supreme  Court  of  Ohio  held  that  the  rule  of  valuation  was  what 
the  interest  of  the  canal  company  was  worth,  not  for  canal  pur- 
poses or  for  any  other  particular  use,  but  generally  for  any  and 
all  uses  for  which  it  might  be  suitable.  And  in  Young  v.  Har- 
rison, (17  Ga.  30,)  where  land  necessary  for  an  abutment  of  a 
bridge  was  appropriated,  the  Supreme  Court  of  Georgia  held 
that  its  value  was  not  to  be  restricted  to  its  agricultural  or  pro- 
ductive capacities,  but  that  inquiry  might  be  made  as  to  all  pur- 
poses to  which  it  could  be  applied,  having  reference  to  existing 
and  prospective  wants  of  the  community.  Its  value  as  a  bridge 
site  was,  therefore,  allowed  in  the  estimate  of  compensation  to 
be  awarded  to  the  owner.     *     *     * 

Judgment  affirmed. 


HILTON  V.  PHOENIX  ASSURANCE  CO. 

Maine,  1898.     92  Me.  272. 

Savage,  J.  Action  on  policy  of  fire  insurance  dated  September 
4,  1889,  The  case  comes  to  us  on  report.  It  is  conceded  that  the 
policy  was  issued  and  the  premium  paid,  and  that  the  property 
was  destroyed  by  fire  September  1,  1892,  within  the  life  of  the 
policy.    The  policy  covered  two  sets  of  buildings  and  other  prop- 


VALUE.  613 

erty.  The  property  burned  with  the  insurance  upon  it  is  de- 
scribed in  the  policy  as  follows :  ' '  $800  on  frame  dwelling  house 
and  L ;  $700  on  frame  barn  situate  about  100  feet  from  said 
dwelling,  and  $200  on  hay  therein, — ^situate  in  school  district  No. 
6,  Wells,  Me.,  and  also  occupied  by  insured."  In  a  previous  part 
of  the  policy,  another  dwelling  house,  also  insured,  was  described 
as  ' '  occupied  by  assured  as  a  residence. "     *     *     * 

It  remains  for  us  to  estimate  the  amount  of  the  plaintiff's 
loss.  This  is  a  question  which  should  have  been  submitted  to  a 
jury.  The  evidence  necessarily  consists  of  the  opinions  of  wit- 
nesses. Very  much  depends  upon  their  intelligence  and  credi- 
bility, and  glean  as  well  as  we  may  from  the  cold  printed  page, 
we  cannot  be  sure  that  we  are  able  to  distinguish  those  to  whom 
most  credit  should  be  given.  A  jury,  seeing  and  hearing  them, 
could  judge  better  than  we.  The  witnesses  estimate  the  loss  all 
the  way  from  $1,700  for  the  house,  and  $1,100  for  the  barn 
(which  is  the  same  as  claimed  by  the  plaintiff  in  his  proof  of 
loss) ,  to  $600  for  both  buildings.  The  higher  estimates  are  clearly 
made  on  a  wrong  basis, — what  it  would  cost  to  replace  the  burned 
buildings  with  new  ones.  The  policy  is  a  contract  of  indemnity 
merely.  Donnell  v.  Donnell,  86  Me.  518.  The  plaintiff  is  entitled 
only  to  have  his  actual  loss  made  good.  The  true  measure  of 
damages  is  the  value  of  the  buildings  themselves  as  they  stood 
upon  the  land  just  before  the  fire.  2  Sedg.  Meas.  Dam.  §722. 
These  buildings,  though  apparently  in  a  fair  state  of  repair, 
were  old, — some  of  them  very  old.  They  were  no  longer  in  use, 
but  we  cannot  assume  that  they  were  useless.  Upon  the  whole, 
it  is  the  opinion  of  the  court  that  the  plaintiff  should  be  allowed 
to  recover  $800  for  the  loss  of  his  buildings.  He  also  lost  five  tons 
of  hay,  for  which  he  should  be  allowed  $60.  The  policy  provides 
that  payment  shall  be  made  within  60  days  after  due  notice  and 
proof  of  loss  shall  have  been  made  by  the  assured.  We  think 
the  plaintiff  should  recover  interest  after  60  days  from  the  time 
he  corrected  his  proof  of  loss,  which  was  June  12,  1893. 

Judgment  for  plaintiff  for  $860,  and  interest  from  August  11, 
1893. 


614  VALUE. 

McMAHON  V.  CITY  OF  DUBUQUE. 

Supreme  Court  of  Iowa,  1898.     107  Iowa,  62. 

Action  for  damages  occasioned  by  a  fire  set  out  from  sparks  es- 
caping from  the  smokestack  of  a  steam  road  roller  owned  and 
being  operated  by  the  city  of  Dubiuiue  in  rolling  newly  laid 
macadam  on  one  of  its  streets  on  which  the  lots  of  plaintiff  abut- 
ted. The  house  thereon,  with  its  contents,  was  destroyed.  The 
jury  returned  a  verdict  for  the  plaintiff  on  which  judgment  was 
rendered,  and  the  defendant  appeals. 

Ladd,  J.  The  household  goods  and  wearing  apparel  of  the 
plaintiff  and  his  family  were  destroyed.  These  had  been  used, 
were  worn,  and  somewhat  out  of  style.  Such  property  has  no 
recognized  market  value,  and  recovery  must  be  based  on  its  actual 
value.  Gere  v.  Insurance  Co.,  67  Iowa,  272,  Clements  v.  Railway 
Co.,  74  Iowa,  442.  To  ascertain  the  actual  value,  it  was  proper  to 
take  into  consideration  the  original  cost  of  the  articles,  the  ex- 
tent of  their  use,  whether  worn  or  out  of  date,  their  condition  at 
the  time,  and  from  all  these  determine  what  they  were  fairly 
worth.  The  cost  alone  would  not  be  the  correct  criterion  for  the 
present  value,  but  it  w^ould  be  difficult  to  estimate  the  value  of 
such  goods  except  by  reference  to  the  former  price,  in  connec- 
tion with  wear,  depreciation,  change  in  style,  and  present  con- 
dition. Luse  v.  Jones,  39  N.  J.  Law,  707 ;  Railway  Co.  v.  Nich- 
olson, 61  Tex.  550,  Lumber  Co.  v.  Wilmore,  15  Col.  Sup.  136; 
Printz  v.  People,  42  Mich  144.  *  *  *  Evidence  was  received, 
over  the  defendant's  objection,  showing  the  actual  value  of  the 
house  at  the  time  of  the  fire,  and,  it  is  said,  this  does  not  furnish 
the  true  basis  of  recovery.  The  fundamental  principle  in  all  ac- 
tions for  damages  is  that  just  compensation  be  made  to  him  who 
has  suffered  injury  from  another  in  his  person  or  property,  and, 
in  order  to  give  satisfaction,  measured  in  money,  such  rules  are 
formulated  as  are  thought  best  adapted  to  accomplish  this  pur- 
pose. A  distinction  has,  for  this  reason,  been  made  between 
growing  crops,  shrubs,  and  trees,  whose  chief  value  is  because 
of  their  connection  with  the  soil  and  their  incidental  enhance- 
ment of  the  value  of  the  land,  and  those  improvements  which 
may  be  replaced  at  will,  and  whose  value  may  readily  be  de- 
termined, apart  from  the  ground  on  which  they  rest.  It  is  thus 
put  by  IMr.  Sutherland  in  his  work  on  Damages  (volume  3,  p. 
368)  :    "If  the  thing  destroyed,  although  it  is  a  part  of  the  realty, 


VALUE.  615 

has  a  value  which  can  be  accurately  measured  and  ascertained 
without  reference  to  the  soil  on  which  it  stands,  or  out  of  which 
it  gi'ows,  the  recovery  may  be  the  value  of  the  thing  thus  de- 
stroyed, and  not  for  the  difference  in  value  of  the  land  before 
and  after  such  destruction."  In  Drake  v.  Railway  Co.,  63  Iowa, 
310,  crops  were  destroyed  by  overflow  caused  by  an  embank- 
ment, and  the  measure  was  held  to  be  the  difference  between  the 
market  value  of  the  land  immediately  before  and  after  the  in- 
jury. This  rule  was  approved  in  Sullens  v.  Railway  Co.,  74  Iowa, 
660,  and  applied,  where  growing  trees  were  burned,  in  Green- 
field V.  Railway  Co.,  83  Iowa,  276,  and  Brooks  v.  Railway  Co.,  73 
Iowa,  182.  See  Smith  v.  Railroad  Co.,  38  Iowa,  518 ;  Striegel  v. 
Moore,  55  Iowa,  88.  In  Rowe  v.  Railway  Co.,  102  Iowa,  288,  the 
court  said :  ' '  Appellant 's  contention  results  in  fixing  the  value 
of  each  tree  destroyed  or  damaged  by  the  fire,  and  the  aggre- 
gate of  such  values  would  be  the  measure  of  plaintiff's  recov- 
ery. Such  a  rule  may  well  be  held  applicable  to  the  destruction 
by  fire  of  buildings,  fences,  and  other  improvements,  which  may 
at  once  be  replaced,  where  the  exact  cost  of  restoring  the  prop- 
erty destroyed  is  capable  of  definite  ascertainment,  and  where 
there  is  no  damage  of  the  realty  itself."  It  is  apparent  that  the 
growing  crops,  small  trees,  and  orchards  are  of  little  or  no  use 
separated  from  the  soil,  and  that  their  value  must  necessarily  be 
determined  in  connection  with  the  land  on  which  they  stand. 
This  is  not  true  of  improvements  which  may  be  replaced  at  will. 
In  Graessle  v.  Carpenter,  70  Iowa,  167,  the  defendant,  by  dig- 
ging trenches  and  laying  water  pipes,  injured  the  plaintiff's 
fences,  walks,  house,  and  shrubs.  It  was  not  shown  the  acts 
were  of  such  a  nature  as  to  permanently  injure  the  real  estate, 
or  that  it  could  not  be  restored  to  its  condition  before  the  fire. 
The  court,  through  Beck,  J.,  announced  the  rule  to  be  that  which 
will  "give  the  plaintiff  just  and  full  compensation.  *  *  * 
In  the  case  before  us  the  familiar  and  simple  rule  applicable  to 
such  cases  would  perfectly  attain  that  end.  That  rule  is  this: 
The  plaintiff  may  recover  as  damages  the  sum  which,  expended 
for  the  purpose,  would  put  the  property  in  as  good  condition 
as  it  was  in  before  the  injury,  with  the  additional  sums  which 
would  compensate  the  plaintiff  for  the  use  and  enjoyment  of  the 
property,  should  he  be  depri^'ed  thereof  by  the  injury,  and  the 
value  of  such  property,  as  trees,  buildings,  and  the  like,  which 
have  been  wholly  destroyed,  and  cannot  be  restored  to  the  con- 


616  VALUE, 

dition  they  were  in  before  the  injury."  We  take  it,  the  trees  and 
slirubs  were  of  a  character  which  might  be  replaced  by  others  of 
the  same  actual  value ;  otherwise  the  case  is  not  in  harmony  with 
those  cited.  In  Freeland  v.  City  of  Muscatine,  9  Iowa,  465,  the 
defendant,  in  changing  the  grade,  dug  away  the  dirt,  and  caused 
the  plaintiff's  house  to  fall,  and  it  was  held:  "The  cost  of  re- 
building or  repairing  was  properly  taken  into  consideration,  if 
we  imderstand  it  as  having  reference  to  the  quality  and  condi- 
tion of  the  building  before  the  accident,  and  the  instiiiction  can- 
not be  taken  in  any  other  sense.  It  is  the  cost  of  rebuilding  and 
repairing,  which  implies  the  restoring  it  to  as  good  a  condition 
as  before,  and  not  the  putting  a  new  and  firm  building  in  the 
place  of  an  old  and  decayed  one."  To  prove  the  market  value 
of  the  land  immediately  before  and  after  the  fire  would  be  ac- 
complishing, by  circumlocution,  what  might  be  directly  ascer- 
tained, for  such  difference  would  be  the  value  of  the  house. 
True,  location  may  sometimes  have  a  bearing,  as  where  a  build- 
ing is  so  situated  as  not  to  be  useful  for  the  purpose  of  its  con- 
struction. In  such  cases  this  must  be  taken  into  consideration 
in  fixing  the  real  value.  But  it  could  be  as  readily  done  in  es- 
timating this  separate  from  as  with  the  land.  Simplicity  and 
directness  are  particularly  favored  in  modem  jurisprudence. 
True,  such  property  may  have  no  market  value.  It  does,  how- 
ever, have  actual  value,  and  this  is  then  the  measure  of  recovery. 
The  ruling  was  right.     *     *     * 

Affirmed. 


TREANOR  V.  NEW  YORK  BREWERIES  CO. 

New  York,   1906.     51   Misc.  607. 

DowLiNG,  J.  From  testimony  which  the  jury  had  a  right  to 
believe  it  was  showTi  in  this  case  that  the  plaintiff,  being  desir- 
ous of  embarking  in  the  saloon  business,  and  having  ascertained 
that  he  could  rent  a  desirable  location  for  the  term  of  10  years, 
provided  he  would  expend  $7,000  in  furnishing  the  place  with 
certain  fixtures,  and  that  the  good  will  could  be  purchased  for 
the  sum  of  $250,  made  an  agreement  with  the  defendant,  through 
its  general  manager,  one  Tighe,  who  agreed  to  loan  plaintiff  said 
sum  of  $7,000,  taking  a  mortgage  upon  the  lease  and  fixtures ;  the 
plaintiff  agreeing   to   purchase   beer   made   by   the    defendant. 


VALUE.  617 

Thereupon  the  plaintiff  made  the  lease,  paid  the  $250  to  the 
former  lessee  for  the  good  will  of  the  business,  paid  the  sum  of 
$500  for  two  months'  rent,  and  took  possession  of  the  premises, 
which  he  occupied  for  that  time.  In  the  meantime,  after  several 
requests  to  do  so,  the  defendant's  manager  refused  to  make  any 
loan  to  plaintiff.  The  plaintiff  thereupon  secured  a  release  from 
his  landlords  upon  payment  to  them  of  the  sum  of  $500,  and 
brought  this  action  for  breach  of  contract,  and  recovered  a 
judgment  for  the  sum  of  $1,250,  made  up  as  follows :  $500  for 
the  two  months'  rent  paid,  $250  for  the  good  will  of  the  business, 
and  $500  paid  for  the  release.  The  appellant  claims  (1)  that 
there  was  no  consideration  for  the  contract;  (2)  that  Tighe  had 
no  authority  to  make  the  contract;  (3)  that  plaintiff  can  recover 
only  nominal  damages ;  (4)  that  the  judgment  is  against  the 
weight  of  evidence,  and  (5)  that  the  items  of  damage  are  not  re 
coverable. 

"Without  a  lengthy  discussion  of  the  merits  of  the  several  ob- 
jections raised  by  the  appellant,  it  is  sufficient  to  say  that  there 
is  sufficient  testimony  in  the  case  to  sustain  a  judgment  against 
the  defendant,  but  we  think  that  as  to  the  item  of  $500  paid  "for 
the  rent  for  two  months  the  defendant  is  not  properly  chargeable 
therewith.  The  plaintiff  occupied  the  premises  for  the  two 
months  for  which  he  paid  rent.  As  to  whether  the  usable  value 
of  the  premises  in  the  condition  the  plaintiff  took  them  was  less, 
equal  to,  or  more  than  the  amount  of  rent  paid  therefor  by  him, 
there  is  no  evidence.  Presumably,  in  the  absence  of  evidence  to 
the  contrary,  the  premises  were  worth  the  rent  paid.  It  is  true 
it  appears  that  after  he  had  been  in  the  premises  for  two  months 
he  found  that,  unless  the  proposed  repairs  were  made,  he  could 
not  successfully  continue  the  business.  Nevertheless  it  does  not 
appear  that  he  met  with  any  loss  during  the  two  months  he  re- 
mained in  occupancy. 

Unless  the  plaintiff  will  stipulate  to  reduce  the  amount  of  re- 
covery to  the  sum  of  $750,  the  judgment  will  be  reversed,  and  a 
new  trial  ordered,  with  costs  to  appellant  to  abide  the  event.  If 
such  stipulation  is  made,  judgment  affirmed,  as  modified,  without 
costs  to  either  party. 

All  concur. 


618  VALUE. 

SILLS  r.  COCHEMS. 

Colorado,  lOOO.     36  Col.  524. 

Bailey,  J.  But  one  question  is  presented  for  determination 
in  this  case:  Is  testimony  tending  to  show  that  plaintiff  was 
busily  engaged  in  the  practice  of  his  profession  admissible  in  an 
action  brouglit  by  a  physician  to  recover  judgment  for  the  value 
of  professional  services  rendered,  where  the  price  to  be  charged 
for  such  services  was  not  agreed  upon  'i 

It  is  said  that  "when  an  attorney  sues  upon  a  quantum  meruit 
for  professional  services,  his  professional  standing  is  a  proper 
subject  of  inquiry  as  affecting  the  value  of  his  services.  And 
the  anv)unt  of  his  professional  business  may  be  inquired  into,  as 
t lauding  to  show  his  professional  standing."  Weeks  on  Attorneys 
i.t  Law,  681 ;  Phelps  v.  Hunt,  40  Conn.  97.  Counsel  has  called 
our  attention  to  no  case,  and  we  know  of  none,  wherein  it  is  held 
that  a  different  rule  should  obtain  in  determining  the  value  of  a 
physician's  services.  The  same  reasoning  which  prompts  the 
doctrine  as  to  attorneys  seems  to  warrant  its  application  to  phy- 
sicians. The  value  of  professional  services  may  depend  very  con- 
siderably upon  the  character  and  standing  of  him  who  performs 
them.  In  the  first  place,  there  are  diversities  of  gifts.  The  pe- 
riod of  time  passed  in  the  profession,  the  experience  acquired,  de- 
grei-  cf  skill,  aud  the  faculty  of  using  professional  knowledge 
make  great  differences  in  individuals.  The  services  of  some  are 
wo.th  more  t];an  the  sein^ices  of  others,  because  they  will  com- 
mand more.  Should  a  question  arise  as  to  the  value  of  services, 
in  an  action  brought  by  a  physician  to  recover  fees,  where  the 
nature  of  the  services  performed  makes  the  possession  of  certain 
qualifications  to  constitute  an  important  element  in  the  value  of 
those  services,  as  in  this  case  where  the  plaintiff  was  called  be- 
cause of  his  x'eeuliar  skill  as  a  diagnostician,  evidence  of  profes- 
sional standing  is  clearly  admissible  and  is  entitled  to  consider- 
ation. 

The  fact  that  plaintiff  was  extremely  busy  tends  to  show  his 
professional  standing,  and  tends  to  show,  in  connection  with 
other  testimony  concerning  the  length  of  time  he  had  practiced 
medicine  in  that  community,  his  experience,  which  gave  him  the 
requisite  knowledge  and  ability  to  properly  diagnose  and  pre- 
scribe the  necessary  medicines  for  diseased  persons.  If  constant 
practice  in  the  art  of  his  profession  renders  a  practitioner  m.cre 


FLUCTUATION  IN  VALUE.  619 

capable  than  he  otherwise  would  be,  the  extent  of  such  a  practice 
is  a  matter  which  may  be  properl}'  inquired  into  for  the  purpose 
of  determining  the  value  of  the  services  rendered. 

The  judgment  of  the  district  court  will  be  affirmed. 

Affirmed. 

Gabbert,  C.  J.,  and  Goddard,  J.,  concur. 


1.     Fluctuation  in  Value. 

BAKER  V.  DRAKE. 
New  York,  1873.     53  N.  Y.  211. 

Rapallo,  J.  The  most  important  question  in  this  case  is  that 
which  relates  to  the  rule  of  damages.  The  judge  at  the  trial,  fol- 
lowing the  case  of  ]\Iarkham  v.  Jaudon,  41  N.  Y.  235,  instructed 
the  jury  that  the  plaintiff,  if  entitled  to  recover,  was  entitled  to 
the  difference  between  the  amount  for  which  the  stock  was  sold 
by  the  defendants  and  the  highest  market  value  which  it  reached 
at  any  time  after  such  sale  down  to  the  day  of  trial. 

This  rule  of  damages  has  been  recognized  and  adopted  in  sev- 
eral late  adjudications  in  this  State  in  actions  for  the  conversion 
of  property  of  fluctuating  value ;  but  its  soundness,  as  a  general 
rule,  applicable  to  all  cases  of  conversion  of  such  property,  has 
been  seriously  questioned,  and  is  denied  in  various  adjudications 
in  this  and  other  States. 

This  court  has,  in  several  instances,  intimated  a  willingness  to 
re-examine  the  subject,  and  in  IMathews  v.  Coe,  49  N.  Y.  57,  per 
Church,  C.  J.,  stated  very  distinctly  that  an  imqualified  rule,  giv- 
ing a  plaintiff  in  all  cases  of  conversion  the  benefit  of  the  highest 
price  to  the  time  of  trial,  could  not  be  upheld  upon  any  sound 
principle  of  reason  or  justice,  and  that  we  did  not  regard  the  rule 
referred  to  so  firmly  settled  by  authority  as  to  be  beyond  the 
reach  of  review,  whenever  an  occasion  should  render  it  necessary. 

Whether  the  present  action  is  one  for  the  conversion  of  prop- 
erty of  the  plaintiff,  or  for  the  breach  of  a  special  contract,  pre- 
sents a  serious  question,  but  that  inquiry  is  perhaps  unimportant 
on  the  question  of  damages  and  will  be  deferred  for  the  present, 
and  the  case  treated  as  if  it  were  one  of  conversion. 

Regarding  it  in  that  light,  the  question  is  whether  or  not,  under 


620  VALUE. 

the  eireimistances  of  the  ease,  the  rule  adopted  by  the  court  be- 
knv  affords  the  jihiintiff  more  than  a  just  indemnity  for  the  h)ss 
he  sustained  by  the  sale  of  the  stock.  It  is  not  pretended  that  the 
defendants  realized  any  profit  by  the  transaction,  and  therefore 
the  inquiry  is  confined  to  the  loss  sustained  by  the  plaintiff. 

It  does  not  api)ear  that  there  was  any  express  contract  made 
between  the  parties,  defining  the  terms  upon  which  the  defend- 
ants were  to  purchase  or  carry  stocks  for  the  plaintiff.  All  that 
appears  upon  that  subject  in  the  evidence  is,  that  the  plaintiff, 
through  his  friend  Rogers,  deposited  various  sums  of  money  with 
the  defendants,  and  from  time  to  time  ciirected  them  to  purchase 
for  his  account  shares  of  stock  to  an  amount  of  cost  from  ten  to 
twenty  times  greater  than  the  sums  deposited;  which  they  did. 
No  agreement  as  to  margin  or  as  to  the  carrying  of  stock  by  the 
defendants  is  sho\Mi  by  the  evidence,  but  the  plaintiff  alleges  in 
his  complaint  that  the  agreement  was  that  he  should  deposit  with 
the  defendants  such  collateral  security  or  margin  as  they  should 
from  time  to  time  require;  and  that  they  would  purchase  the 
stock  and  hold  and  carry  the  same,  subject  to  the  plaintiff's  direc- 
tion as  to  the  sale  and  disposition  thereof,  as  long  as  the  plaintiff 
should  desire,  and  would  not  sell  or  dispose  of  the  same  unless 
plaintiff's  margin  should  be  exhausted  or  insufficient,  and  not 
then,  unless  they  should  demand  of  the  plaintiff  increased  secur- 
ity, or  require  him  to  take  and  pay  for  the  stocks,  and  give  him 
due  notice  of  the  time  and  place  of  sale,  and  due  opportunity  to 
make  good  his  margin. 

The  answer  denies  only  the  agreement  to  give  notice  of  the  time 
and  place  of  sale,  admitting  by  implication  that  in  other  respects 
the  agreement  is  correctly  set  forth. 

This  is  all  that  appears  upon  the  record  in  reference  to  the 
contract  under  which  the  stocks  were  purchased. 

The  transactions  under  this  contract  appear  in  detail  by  a  final 
aceouut  rendered  by  the  defendants  to  the  plaintiff,  after  the 
stock  had  been  sold.  This  account  was  upon  the  trial  admitted 
to  be  correct,  the  plaintiff  reserving  the  right  only  to  dispute 
certain  charges  of  interest,  which,  however,  if  successfully  as- 
sailed, would  not  vary  the  result  to  an  extent  sufficient  to  affect 
the  reasoning  based  upon  it. 

From  this  accoimt  it  appears  that  the  plaintiff  had,  during  the 
whole  cour.se  of  his  transactions  with  the  defendants,  advanced 
in  the  aggregate  but  $4,240  toward  the  purchase  of  shares,  which. 


FLUCTUATION  IN  VALUE.  621 

at  the  time  of  the  alleged  wrongful  sale,  Nov.  14,  1S68,  had  cost 
the  defendants  upward  of  $66,300  over  and  above  all  the  sums  so 
advanced  by  the  plaintiff. 

By  the  stock  lists  in  evidence  it  appears  that  these  shares  were 
then  of  the  market  value  of  less  than  $67,000,  and  the  surplus 
arising  from  the  sale,  after  paying  the  amount  due  the  defend- 
ants, amounted  to  only  $558,  which  sum  represents  the  value  at 
that  time  of  the  plaintiff 's  interest  in  the  property  sold. 

It  so  happened,  however,  that  within  a  few  days  after  the  sale 
the  market  price  of  the  stock  rose,  and  that  at  the  time  of  the 
commencement  of  this  action,  Nov.  24,  1868,  the  shares  would 
have  brought  some  $5,500  more  than  the  sum  for  which  they  had 
been  sold.  But  after  the  commencement  of  the  action,  and  be- 
fore the  trial,  the  stock  underwent  alternate  elevation  and  de- 
pression, and  reached  its  maximum  point  in  August,  1869,  at 
which  time  one  sale,  of  thirty  shares  at  170  per  cent,  was  proved. 
It  afterward  declined,  and  on  the  day  preceding  the  trial,  Oct. 
20,  1869,  the  price  was  143,  having,  for  a  month  previous  to  the 
trial,  ranged  between  137  and  145. 

The  jury,  in  obedience  to  the  rule  laid  down  by  the  court, 
found  a  verdict  for  the  plaintiff  for  $18,000,  being  just  the  dif- 
ference between  134,  which  was  the  average  price  at  which  the 
defendants  sold,  and  170,  the  highest  price  touched  before  the 
trial ;  thirty-six  per  cent  on  500  shares.  More  than  two  thirds  of 
this  supposed  damage  arose  after  the  bringing  of  the  suit. 

This  enormous  amount  of  profit,  given  under  the  name  of 
damages,  could  not  have  been  arrived  at  except  upon  the  un- 
reasonable supposition,  unsupported  by  any  evidence,  that  the 
plaintiff  would  not  only  have  supplied  the  necessary  margin  and 
caused  the  stock  to  be  carried  through  all  its  fluctuations  until 
it  reached  its  highest  point,  but  that  he  would  have  been  so  for- 
tunate as  to  seize  upon  that  precise  moment  to  sell,  thus  avoid- 
ing the  subsequent  decline,  and  realizing  the  highest  profit  which 
could  have  possibly  been  derived  from  the  transaction  by  one  en- 
dowed with  the  supernatural  power  of  prescience. 

In  a  case  where  the  loss  of  probable  profits  is  claimed  as  an 
element  of  damage,  if  it  be  ever  allowable  to  mulct  a  defendant 
for  such  a  conjectural  loss,  its  amount  is  a  question  of  fact,  and 
a  finding  in  respect  to  it  should  be  based  upon  some  evidence. 
In  respect  to  a  dealing  which,  at  the  time  of  its  termination,  was 
as  likely  to  result  in  further  loss  as  in  profit,  to  lay  down  as  an 


622  ViUjUE. 

inflexible  rule  of  law  that  as  damages  for  its  wrongful  interrup- 
tion the  largest  amount  of  profit  which  subsequent  developments 
disclose,  might,  under  the  most  favorable  circumstances,  have 
been  possibly  obtained  from  it,  must  be  awarded  to  the  for- 
tunate individual  who  occupies  the  position  of  plaintiff,  without 
regard  to  the  probabilities  of  his  realizing  such  profits,  seems  to 
me  a  wide  departure  from  the  elementary  principles  upon  which 
damages  have  hitherto  been  awarded. 

An  amoimt  sufficient  to  indemnify  the  party  injured  for  the 
loss,  which  is  the  natural,  reasonable,  and  proximate  result  of 
the  wrongful  act  complained  of,  and  which  a  proper  degree  of 
prudence  on  the  part  of  the  complainant  would  not  have  averted, 
is  the  measure  of  damages  which  juries  are  usually  instructed  to 
award,  except  in  cases  where  punitive  damages  are  allowable. 
Before  referring  to  the  authorities  which  are  supposed  to  govern 
the  question,  I  will  briefly  suggest  what  would  be  a  proper  indem- 
nity to  the  injured  party  in  a  case  like  the  present,  and  how 
greatly  the  rule  under  consideration  exceeds  that  just  limit. 

The  plaintiff  did  not  hold  the  stocks  as  an  investment,  but  the 
object  of  the  transaction  was  to  have  the  chance  of  realizing  a 
profit  by  their  sale.  He  had  not  paid  for  them.  The  defendants 
had  supplied  all  the  capital  embarked  in  the  speculation,  except 
the  comparatively  trifling  sum  which  remained  in  their  hands  as 
margin.  Assuming  that  the  sale  was  in  violation  of  the  rights 
of  the  plaintiff,  what  was  the  extent  of  the  injury  inflicted  upon 
him?  He  was  deprived  of  the  chance  of  a  subsequent  rise  in 
price.  But  this  was  accompanied  with  the  corresponding  chance 
of  a  decline,  or,  in  ease  of  a  rise,  of  his  not  availing  himself  of  it 
at  the  proper  moment ;  a  continuance  of  the  speculation  also  re- 
quired him  to  supply  further  margin,  and  involved  a  risk  of  ulti- 
mate loss. 

If,  upon  becoming  informed  of  the  sale,  he  desirod  further  to 
prosecute  the  adventure  and  take  the  chances  of  a  future  market, 
he  had  the  right  to  disaffirm  the  sale  and  require  the  defendants 
to  replace  the  stock.  If  they  failed  or  refused  to  do  this,  his  rem- 
edy was  to  do  it  himself  and  charge  them  with  the  loss  reasonably 
sustained  in  doing  so.  The  advance  in  the  market  price  of  the 
stock  from  the  time  of  the  sale  up  to  a  reasonable  time  to  replace 
it,  after  the  plaintiff  received  notice  of  the  sale,  would  afford  a 
complete  indemnity.  Suppose  the  stock,  instead  of  advancing, 
had  declined  after  the  sale,  and  the  plaintiff  had  replaced  it,  or 


FLUCTUATION  IN  VALUE.  623 

had  full  opportunity  to  replace  it,  at  a  lower  price,  could  it  be 
said  that  he  sustained  any  damage  by  the  sale;  would  there  be 
any  justice  or  reason  in  permitting  him  to  lie  by  and  charge  his 
broker  with  the  result  of  a  rise  at  some  remote  subsequent 
period  ?  If  the  stocks  had  been  paid  for  and  owned  by  the  plain- 
tiff, different  considerations  would  arise,  but  it  must  be  borne  in 
mind  that  we  are  treating  of  a  speculation  carried  on  with  the 
capital  of  the  broker,  and  not  of  the  customer.  If  the  broker  has 
violated  his  contract,  or  disposed  of  the  stock  without  authority, 
the  customer  is  entitled  to  recover  such  damages  as  would  natur- 
ally be  sustained  in  restoring  himself  to  the  position  of  which 
he  has  been  deprived.  He  certainly  has  no  right  to  be  placed  in 
a  better  position  than  he  would  be  in  if  the  wrong  had  not  been 
done. 

But  the  rule  adopted  in  Markham  v.  Jaudon,  passing  far  be- 
yond the  scope  of  a  reasonable  indemnity  to  the  customer  whose 
stocks  have  been  improperly  sold,  places  him  in  a  position  incom- 
parably superior  to  that  of  which  he  was  deprived.  It  leaves  him, 
with  his  venture  out,  for  an  indefinite  period,  limited  only  by 
what  may  be  deemed  a  reasonable  time  to  bring  a  suit  and  con- 
duct it  to  its  end.  The  more  crowded  the  calendar  and  the  more 
new  trials  granted  in  the  action,  the  better  for  him.  He  is  freed 
from  the  trouble  of  keeping  his  margins  good  and  relieved  of  all 
apprehension  of  being  sold  out  for  want  of  margin.  If  the  stock 
should  fall  or  become  worthless,  he  can  incur  no  loss,  but,  if  at 
any  period  during  the  months  or  years  occupied  in  the  liti- 
gation the  market  price  of  the  stock  happens  to  shoot  up,  though 
it  be  but  for  a  moment,  he  can,  at  the  trial,  take  a  retrospect  and 
seize  upon  that  happy  instant  as  the  opportunity  for  profit  of 
which  he  was  deprived  by  his  transgressing  broker,  and  compel 
him  to  replace  with  solid  funds  this  imaginary  loss.     *     *     * 

The  most  thorough  consideration  of  the  subject  to  be  found  in 
any  reported  case  is  contained  in  the  extremely  able  opinion  of 
Duer,  J.,  in  Suydam  v.  Jenkins,  3  Sandf.  Sup.  Court  Reports,  619 
to  647,  where  that  accomplished  jurist  reviews,  with  great  dis- 
crimination, many  of  the  cases  here  referred  to,  and  others  which 
have  not  been  cited,  and  arrives  substantially  at  the  same  conclu- 
sion as  that  reached  by  Church,  C.  J.,  in  INIathews  v.  Coe,  that  the 
highest  price  which  the  property  has  borne  at  any  time  between 
its  conversion  and  the  trial  cannot  in  all  cases  be  the  just  meas- 
ure of  damages.    The  reasoning  contained  in  that  opinion  is  of 


624  v.VLUB. 

such  force  as  to  outweigh  the  apparent  preponderance  of  author- 
ity in  favor  of  the  rule  claimed,  and  demonstrates  its  fallacy 
when  ai)iili»>d  to  the  facts  of  the  present  case,  whether  the  cause 
of  action  be  deemed  for  conversion  of  property  or  the  breach  of 
a  contract. 

When  we  consider  the  opposition  which  this  rule  has  con- 
stantly encountered  in  the  courts,  the  variety  of  the  judgments  in 
the  cases  in  which  it  has  been  invoked,  and  the  doubting  man- 
ner in  which  it  has  been  referred  to  by  eminent  jurists,  whose  de- 
cisions are  cited  in  its  support,  it  cannot  be  regarded  as  one  of 
those  settled  rules  to  which  the  principle  of  stare  decisis  should 
apply.  See  Startup  v.  Cortazzi,  2  Cr.,  Mees.  &  Rose.  165 ;  2  K. 
Com.,  637,  11th  ed.,  note ;  Owen  v.  Routh,  14  C.  B.  327 ;  Williams 
V.  Archer,  5  Man.,  Gr.  &  Scott,  318 ;  Archer  v.  Williams,  2  Car. 
&  Kir.  26 ;  Rand  v.  White  Mountains  R.  R.  Co.,  40  N.  H.  79 ; 
BrasG  V.  Worth,  40  Barb.  648 ;  Pinkerton  v.  Manchester  R.  R.,  42 
N.  H.  424 ;  45  N.  H.  545,  and  the  able  review  of  the  subject  in 
Sedgwick  on  Damages,  pp.  550  to  555,  note,  5th  ed. 

It  seems  to  me,  after  as  full  an  examination  of  the  subject  as 
circumstances  have  permitted,  that  the  dissenting  opinions  of 
Grover  and  Woodruff,  JJ.,  in  Markham  v.  Jaudon,  embody  the 
sounder  reasons,  and  that  the  rule  of  damages  laid  down  in  that 
case  and  followed  in  the  present  one  is  not  well  founded,  and 
should  not  be  sustained. 

For  this  reason,  without  passing  upon  the  other  questions 
involved  in  the  ease,  I  think  the  judgment  should  be  reversed 
and  a  new  trial  ordered,  with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 


INGRAM  V.  RANKIN. 
Wisconsin,  1879.     47  Wis.  406. 

Taylor,  J.  *  *  *  Upon  the  question  of  damages,  the 
court  instructed  the  jury  as  follows :  ' '  Testimony  has  been  given 
in  respect  to  the  value  of  this  property;  not  the  value  of  the 
property  at  the  time  it  was  taken,  but  the  highest  value  of  this 
property  at  any  time  since  the  property  was  taken,  to  the  present 
time.  If  the  plaintiff  be  entitled  to  recover,  he  is  entitled  to 
recover  the  highest  value  of  the  property  within  that  period  of 


FLUCTUATION  IN   VALUE.  625 

time,  from  the  time  it  was  taken  to  the  present  time. ' '     To  this 
instruction  the  defendants  duly  excepted. 

After  a  careful  consideration  of  the  decisions  of  this  court 
upon  the  question  as  to  the  rule  of  damages  in  actions  of  this 
kind,  and  an  examination  of  a  large  number  of  cases  decided 
by  the  courts  of  other  States  in  this  country,  and  by  the  courts 
of  England,  we  are  satisfied  that  the  rule  as  laid  down  by  the 
learned  Circuit  Judge  is  not  sustained  by  the  weight  of  author- 
ity, and  that  it  ought  not  to  be  adopted  by  this  court  upon  prin- 
ciple. We  think  the  rule  adopted  by  the  Circuit  Court  would 
in  many  cases  work  great  injustice,  and  violate  the  rule  that 
compensation  for  the  plaintiff's  loss  is  the  true  rule  of  damages 

in  all  cases  in  which  he  is  not  entitled  to  exemplary  damages. 

*     *     * 

It  certainly  cannot  be  said  that  this  court  has  in  any  case 
decided  that,  either  in  actions  for  the  non-delivery  of  chattels 
according  to  agreement,  or  in  actions  to  recover  damages  for 
the  conversion  of  the  same,  the  plaintiff  may  recover  as  dam- 
ages the  highest  market  value  of  the  chattels  at  any  time  inter- 
mediate the  time  when  they  should  have  been  delivered  accord- 
ing to  contract,  or  the  time  when  they  were  converted,  and  the 
day  of  trial.  On  the  other  hand,  we  think  the  imiform  course  of 
decision  is,  that  the  measure  of  damages  is  the  value  of  the  prop- 
erty at  the  time  fixed  for  the  delivery,  or  at  the  time  of  the  con- 
version, wath  interest  to  the  day  of  trial;  the  only  exception  to 
the  rule  being  that  in  case  of  replevin,  where  the  property  is  in 
esse  and  supposed  to  be  in  the  hands  of  the  defendant  at  the 
time  of  the  trial,  if  plaintiff  recovers,  he  may  recover  as  his  dam- 
ages the  value  of  the  property  on  the  day  of  trial,  excluding  any 
A'alue  added  to  the  same  by  labor  or  money  of  the  defendant,  or 
those  under  whom  he  claims. 

If  the  question  were  open  for  consideration  in  this  court,  and 
we  were  at  liberty  now  to  fix  a  rule  of  damages  in  cases  like  the 
one  at  bar,  we  should  feel  constrained  to  fix  the  one  which  has 
already  been  established  by  this  court.  It  is  said  that  the  rule 
giving  as  damages  the  highest  market  value  intermediate  the 
conversion  or  day  of  delivery  and  the  day  of  trial,  should  be 
applied  to  articles  of  trade  and  commerce  which  fluctuate  in 
value  from  day  to  day ;  and  that  to  adhere  to  the  rule  of  value 
at  the  time  of  the  conversion  would  in  many  cases  allow 
the  wrong-doer  to  make  profit  out  of  his  own  wrong,  or  at  all 

40 


626  VALUE. 

1  vents  it  might  prevent  the  plaintiff  from  taking  advantage  of  a 
1  Ising  market,  and  thereby  might  deprive  him  of  his  reasonable 
(.■xpeetations  of  prolit  from  liis  investments. 

There  can  be  no  force  in  the  argument  that  the  defendant 
would  be  allowed  to  make  money  out  of  his  own  tortious  act. 
If  the  wrong-doer  sells  the  property  which  he  has  unlawfully 
taken  from  another,  the  owner  of  the  property  can  waive  the 
tort  and  sue  the  tort-feasor  for  the  money  he  has  received  upon 
such  sale  of  his  property,  and  thereby  prevent  him  from  making 
a  profit  out  of  his  wrong.  But  the  rule  which  allows  the  plaintiff 
to  recover  the  highest  market  value  is  objectionable,  because  it 
allows  him  to  recover  speculative  damages,  especially  when  a  long 
time  elapses  between  the  conversion  and  the  day  of  trial.  In 
most  cases  property  which  rapidly  changes  in  value  is  not  re- 
tained in  the  possession  or  o\\Tiership  of  one  person  for  a  great 
length  of  time;  and  it  would  be  a  matter  of  the  utmost  doubt 
whether  the  plaintiff,  had  he  not  been  deprived  of  the  possession 
of  his  property,  would  have  realized  the  highest  market  value  to 
which  it  might  have  attained  during  the  time  of  the  conversion 
and  the  time  of  trial ;  and  in  those  cases  where  the  market  value 
is  very  fluctuating,  great  injustice  would  be  done  by  this  rule 
to  the  man  who  honestly  converted  such  property,  in  the  belief 
that  it  was  his  own,  if,  after  the  lapse  of  five  or  six  years,  he 
should  be  called  upon  to  pay  the  highest  market  value  it  had  at- 
tained during  that  time.  The  hardship  of  enforcing  this  rule  in 
the  case  of  stocks,  which  is  perhaps  property  of  the  most  unfixed 
value,  forced  the  Court  of  Appeals  in  New  York  to  repudiate  the 
rule,  after  it  had  been  partially  adopted  by  the  courts  of  that 
State.  See  Baker  v.  Drake,  53  N.  Y.  211;  Bank  v.  Bank,  60 
N.  Y.  42.     *     *     * 

The  rule  fixing  the  measure  of  damages  in  actions  for  breaches 
of  contract  for  the  delivery  of  chattels,  and  in  all  actions  for 
the  wrongful  and  unlawful  taking  of  chattels,  whether  such  as 
would  formerly  have  been  denominated  trespass  de  bonis  or 
trover,  at  the  value  of  the  chattels  at  the  time  when  delivery 
ought  to  have  been  made,  or  at  the  taking  or  conversion,  with 
interest,  is  certainly  founded  upon  principle.  It  harmonizes  with 
the  rule  which  restricts  the  plaintiff  to  compensation  for  his  loss, 
and  is  as  just  and  equitable  as  any  other  general  rule  which  the 
courts  have  been  able  to  prescribe,  and  has  greatly  the  advan- 
tage of  certainty  over  all  others. 


FLUCTUATION  IN  VALUE.  627 

We  have  concluded,  therefore,  to  adhere  to  the  general  rule 
laid  down  by  this  court  in  the  cases  cited,  and  hold  that  in  all 
actions,  either  upon  contract  for  the  non-delivery  of  goods,  or 
for  the  tortious  taking  or  conversion  of  the  same,  "unless,"  in 
the  language  of  Sedgwick  (Damages,  6th  ed.,  p.  1591),  "the 
plaintiff  is  deprived  of  some  special  use  of  the  property  antici- 
pated by  the  wrong-doer,"  and  in  the  absence  of  proof  of  cir- 
cumstances wliich  would  entitle  the  plaintiff  to  recover  ex- 
emplary or  panitory  damages,  the  measure  of  damages  is,  first, 
the  value  of  the  chattels  at  the  time  and  place  when  and  where 
the  same  should  have  been  delivered,  or  of  the  wrongful  taking 
or  conversion,  with  interest  on  that  sum  to  the  date  of  trial; 
second,  if  it  appears  that  the  defendant,  in  case  of  a  wrongful 
taking  or  conversion,  has  sold  the  chattels,  the  plaintiff  may,  at 
his  election,  recover  as  his  damages  the  amount  for  which  the 
same  were  sold,  with  interest  from  the  time  of  the  sale  to  the 
day  of  trial;  third,  if  it  appears  that  the  chattels  wrongfully 
taken  or  converted  are  still  in  the  possession  of  the  defendant  at 
the  time  of  the  trial,  the  plaintiff  may,  at  his  election,  recover 
the  present  value  of  the  same  at  the  place  where  the  same  were 
taken  or  converted,  in  the  form  they  were  in  when  so  taken  or 
converted. 

These  rules  will  prevent  the  defendant  from  making  profit  out 
of  his  own  wrong,  will  give  the  plaintiff'  the  benefit  of  any  ad- 
vance in  the  price  of  the  chattels  when  defendant  holds  posses- 
sion of  the  same  at  the  time  of  the  trial,  and  on  the  whole  will 

be  much  more  equitable  than  the  rule  given  by  the  court  below. 
*     *     * 

By  the  Court. — The  judgment  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded  for  a  new  trial. 


GALIGHER  v.  JONES. 
United  States  Supreme  Court,  1889.    129  U.  S.  193. 

Bradley,  J.  This  is  a  suit  brought  by  Jones,  a  stockbroker, 
against  his  customer,  for  the  balance  of  account  alleged  to  be  due 
to  the  plaintiff  arising  out  of  advances  of  money  and  purchases 
and  sales  made,  and  commissions.  *  *  *  Galigher,  the  de- 
fendant below,   in  his  answer,  alleged  that  in  the    month    of 


628  VALUE. 

November,  1878,  the  plaintiff,  as  defendant's  agent,  held  for  him 
600  shares  of  mining  stock,  known  as  "Challenge"  stock;  and 
■without  his  consent,  on  the  27th  and  2i)th  of  said  November,  sold 
the  same  for  his,  the  plaintiff's,  own  use,  to  the  damage  of  the  de- 
fendant of  $2850.     *     *     * 

As  to  the  second  item  of  counterclaim  *  *  *  viz. :  the 
alleged  wrongful  sale  by  the  plaintiff  of  600  shares  of  "Chal- 
lenge" stock,  the  referee  found  that  the  plaintiff  held  such  stock 
for  the  defendant,  and  on  the  27th  and  29th  of  November,  1878, 
of  his  own  motion,  and  without  notice  to  the  defendant,  sold  it  for 
$1.25  per  share;  that  in  December  the  stock  sold  as  high  as  $2 
per  share ;  in  January  the  highest  price  was  $3.10 ;  in  February 
the"  highest  price  was  $5.50.  The  referee  allowed  the  defendant 
the  highest  price  in  January,  namely,  $3.10  per  share,  being  an 
advance  of  $1.85  above  what  the  plaintiff  sold  the  stock  for, 
which,  for  the  whole  600  shares,  amounted  to  $1110.  The  reason 
assigned  by  the  referee  for  not  allowing  the  defendant  the  highest 
price  in  February  (namely,  $5.50  per  share)  was  that  before  that 
time  the  defendant  had  reasonable  time,  after  receiving  notice  of 
the  sale  of  his  stock  by  the  plaintiff,  to  replace  it  by  the  purchase 
of  new  stock,  if  he  desired  so  to  do;  and  he  allowed  him  the 
highest  price  which  the  stock  reached  within  that  reasonable  time. 
In  this  conclusion  we  think  the  referee  was  correct,  and  as  to 
this  item  we  see  no  error  in  the  result.     *     *     * 

It  has  been  assumed,  in  the  consideration  of  the  ease,  that 
the  measure  of  damages  in  stock  transactions  of  this  kind  is  the 
highest  intermediate  value  reached  by  the  stock  between  the 
time  of  the  wrongful  act  complained  of  and  a  reasonable  time 
thereafter,  to  be  allowed  to  the  party  injured  to  place  himself  in 
the  position  he  would  have  been  in  had  not  his  rights  been  vio- 
lated. This  rule  is  most  frequently  exemplified  in  the  wrongful 
conversion  by  one  person  of  stocks  belonging  to  another.  To  al- 
low merely  their  value  at  the  time  of  conversion  would,  in  most 
cases,  afford  a  very  inadequate  remedy,  and,  in  the  case  of  a 
broker,  holding  the  stocks  of  his  principal,  it  would  afford  no 
remedy  at  all.  The  effect  would  be  to  give  to  the  broker  the  con- 
trol of  the  stock,  subject  only  to  nominal  damages.  The  real 
injury  sustained  by  the  principal  consists  not  merely  in  the  as- 
sumption of  control  over  the  stock,  but  in  the  sale  of  it  at  an  un- 
favorable time,  and  for  an  unfavorable  price.  Other  goods 
wrongfully  converted  are  generally  supposed  to  have  a   fixed 


FLUCTUATION  IN  VALUE.  629 

market  value  at  which  they  can  be  replaced  at  any  time;  and 
hence,  with  regard  to  them,  the  ordinary  measure  of  damages  is 
their  value  at  the  time  of  conversion,  or,  in  case  of  sale  and  pur- 
chase, at  the  time  fixed  for  their  delivery.  But  the  application 
of  this  rule  to  stocks  would,  as  before  said,  be  very  inadequate 
and  unjust. 

The  rule  of  highest  intermediate  value  as  applied  to  stock  trans- 
actions has  been  adopted  in  England  and  in  several  of  the  States 
in  this  country;  whilst  in  some  others  it  has  not  obtained.  The 
form  and  extent  of  the  rule  have  been  the  subject  of  much  dis- 
cussion and  conflict  of  opinion.  The  cases  will  be  found  collected 
in  Sedgwick  on  the  Measure  of  Damages  [479],  vol.  2,  7th  ed. 
379,  note  (b)  ;  Mayne  on  Damages,  83  (92  Law  Lib.)  ;  1  Smith's 
Lead.  Cas.  (7  Amer.  ed.)  367.  The  English  cases  usually  re- 
ferred to  are  Cud  v.  Rutter,  1  P.  Wms.  572,  4th  ed.  [London, 
1777],  note  (3)  ;  Owen  v.  Routh.  14  C.  B.  327;  Loder  v.  Kekule, 
3  C.  B.  (n.  s.)  128;  France  v.  Gaudet,  L.  R.  6  Q.  B.  199.  It  is 
laid  down  in  these  cases  that  where  there  has  been  a  loan  of  stock 
and  a  breach  of  the  agreement  to  replace  it,  the  measure  of  dam- 
ages will  be  the  value  of  the  stock  at  its  highest  price  on  or  be- 
fore the  day  of  trial. 

The  same  rule  was  approved  by  the  Supreme  Court  of  Penn- 
sylvania in  Bank  of  Montgomery  v.  Reese,  26  Penn.  St.  (2 
Casey),  143,  and  Musgrave  v.  Beckendorff,  53  Penn.  St.  (3  P.  F. 
Smith)  310.  But  it  has  been  restricted  in  that  State  to  cases  in 
which  a  true  relation  exists  between  the  parties, — a  relation 
which  would  probably  be  deemed  to  exist  between  a  stock-broker 
and  his  client.  See  Wilson  v.  Whitaker,  49  Penn.  St.  (13  Wright) 
114;  Huntingdon  R.  R.  Co.  v.  English,  86  Penn.  St.  247. 

Perhaps  more  transactions  of  this  kind  arise  in  the  State  of 
New  York  than  in  all  other  parts  of  the  country.  The  rule 
of  highest  intermediate  value  up  to  the  time  of  trial  formerly 
prevailed  in  that  State,  and  may  be  found  laid  down  in  Romaine 
v.  Van  Allen,  26  N.  Y.  309,  and  Markham  v.  Jaudon,  41  N.  Y. 
235,  and  other  cases,— although  the  rigid  application  of  the  rule 
was  deprecated  by  the  New  York  Superior  Court  in  an  able  opin- 
ion by  Judge  Duer,  in  Suydam  v.  Jenkins,  3  Sandford,  N.  Y.  614. 
The  hardship  which  arose  from  estimating  the  damages  by  the 
highest  price  up  to  the  time  of  trial,  which  might  be  years  after 
the  transaction  occurred,  was  often  so  great,  that  the  Court  of 
Appeals  of  New  York  was  constrained  to  introduce  a  material 


630  VALUE. 

modification  in  the  form  of  the  rule,  and  to  hold  the  true  and  just 
measure  of  damages  in  these  eases  to  be,  the  highe.st  intermediate 
value  of  the  stock  between  the  time  of  its  conversion  and  a  rea- 
sonable time  after  the  owner  has  received  notice  of  it  to  enable 
him  to  replace  the  stock.  This  modification  of  the  rule  was  very 
ably  enforced  in  an  opinion  of  the  Court  of  Appeals  delivered  by 
Judge  Rapallo.  in  the  case  of  Baker  v.  Drake,  53  N.  ¥.211,  which 
was  subsequently  followed  in  the  same  case  in  66  N.  Y.  211,  and 
in  Gruman  v.  Smith,  81  N.  Y.  25 ;  Colt  v.  Owens,  90  N.  Y.  368 ; 
and  AYright  v.  Bank  of  ]\Ietropolis,  110  N.  Y.  237. 

It  would  be  a  herculean  task  to  review  all  the  various  and  con- 
flicting opinions  that  have  been  delivered  on  this  subject.  On 
the  whole  it  seems  to  us  that  the  New  York  rule,  as  finally  settled 
by  the  Court  of  Appeals,  has  the  most  reasons  in  its  favor,  and  we 
adopt  it  as  a  correct  view  of  the  law. 

The  judgment  is  reversed  and  the  cause  remanded  to  the 
Supreme  Court  of  Utah  with  instructions  to  enter  judgment 
in  conformity  with  this  opinion. 

A  race-horse  was  killed  at  Panama,  where  there  is  no  market  for  such 
proi)ert.y.  Held  that  market  value  at  San  Francisco,  the  place  of 
destination,  could  he  shown.  Harris  v.  Panama  R.  R.,  58  N.  Y.  G60. 
The  same  doctrine  was  announced  in  a  case  of  the  conversion  of  a 
ship.  Glashy  v.  Cabot,  135  Mass.  435.  The  risk  of  getting  the  ship 
to  the  market  should  be  considered  also. 

But  the  general  rule  of  damages  in  case  of  conversion  of  personal 
property  is  the  value  at  the  time  of  conversion  and  interest  on  its 
fair  value  from  that  time.     Redmond  v.  Am.  Mfg.  Co.,  121  N.  Y.  415. 

In  estimating  the  value  of  a  life  estate  the  Carlisle  tables  are  ad- 
missible in  evidence,  in  connection  with  expert  testimony  of  computa- 
tions thereunder.  City  of  Joliet  v.  Blower,  155  111.  414.  See,  too,  Ker- 
rigan V.  Penu.  R.  R.  Co.,  44  Atl.  Rep.  10G9. 

Where  sawmill  property  was  wrongfully  attached  and  bankruptcy 
resulted,  the  measure  of  damages  was  held  to  be  the  less  of  its  use, 
not  injury  to  credit.    Union  Nat.  Bank  v.  Cross,  100  Wis.  1S7. 

Where  through  mining  operations  permanent  injuries  to  land  result 
from  failure  to  give  surface  support,  the  measure  of  damages  is  the 
depreciation  of  the  value  of  the  land.     Weaver  v.  Berwind,  216  Pa.  195. 

Where  a  railroad  company  has  been  cutting  timber  on  the  lands  of 
the  United  States,  the  defendant  must  pay  as  damages  the  value  of 
the  timber  at  the  time  and  place  of  the  cutting,  not  of  the  delivery. 
U.  S.  V.  St.  Anthony  R.  R.  Co.,  192  U.  S.  541.  So  where  an  animal 
is  killed  as  having  tuberculosis,  the  value  of  the  animal  is  estimated 
as  an  animal  in  a  diseased  condition.  Tappen  v.  State  of  New  York, 
146  N.  Y.  44.  Where  shade  trees  have  been  destroyed,  the  rule  of 
damages  is  to  ascertain  the  difference  between  the  value  of  the  land 
before  and  after  the  iiijnry.     Evans, v.  Keystone  Gas  Co.,  148  N.  Y.  112. 


XII.     MITIGATION  OF  DAMAGES. 

CURRIER  V.  SWAN. 

Maine,  1874.     63  Me.  323. 

Peters,  J.  An  affray  took  place  between  the  plaintiff  and  one 
of  the  defendants,  at  a  railroad  depot  in  the  afternoon,  and  on 
the  evening  of  the  same  day  that  defendant  with  the  others  pro- 
ceeded to  the  plaintiff's  house,  and  inflicted  violence  upon  him 
there.  The  defendants  desired  to  show  what  took  place  in  the 
afternoon,  in  mitigation  of  damages  for  the  assault  committed 
afterwards.  The  justice  presiding  admitted  in  evidence  the  fact 
that  there  had  been  an  affray,  but  excluded  evidence  of  the  de- 
tails of  it. 

The  ruling,  both  as  to  the  admission  and  exclusion  of  evidence, 
was  right.  The  admission  was  right,  because  it  was  to  show  the 
object  and  purpose  of  the  second  assault,  or  the  state  of  mind 
with  which  it  was  done.  Otherwise,  there  would  have  been  noth- 
ing to  indicate  to  the  jury  but  that  the  house  was  entered  for  the 
purpose  of  robbery  and  plunder,  or  something  of  the  kind.  The 
fact  of  a  previous  affray  might  have  some  weight  upon  the  ques- 
tion of  the  amount  of  damages  recoverable,  and  might  legiti- 
mately be  regarded  as  a  part  of  the  transaction  to  be  investigated 
in  this  suit.  But  the  further  evidence,  offered  and  excluded,  was 
not  fairly  a  part  of  the  facts  involved  in  this  investigation.  The 
assault  complained  of  here  was  committed  at  another  time  and  at 
another  place,  and  mostly  by  other  parties.  It  was  immaterial 
whether  the  fault  of  the  previous  affray  was  in  the  one  or  the 
other  party  concerned.  If  the  defendant  was  ever  so  right  in 
the  first  affray,  he  should  have  resorted  to  proper  legal  reme- 
dies, and  not  assmne  to  take  the  law  into  his  own  hands.  If  he 
is  permitted  to  show  the  merits  of  the  controversy  in  the  after- 
noon, then  the  plaintiff  would  have  as  much  right  to  show  the 
provocation  that  led  him  into  that  affray,  and  the  result  would 
be,  the  trial  of  several  causes  in  one ;  and,  as  said  in  Mathews  v. 
Terry,  10  Conn.  459,  "the  jury  would  be  distracted  with  a  mul- 
tiplicity of  questions  and  issues."    The  early  and  leading  case  of 

631 


632  MITIGATION   OF    DAMAGES. 

Avery  v.  Ray,  1  JNIass.  12,  decided  in  1812,  has  been  recognized  as 
a  correct  authority  upon  this  subject,  iu  most  of  the  courts  in 
this  country,  ever  since.  It  has  been  invariably  followed  in 
^Massachusetts,  in  many  subsequent  cases.  Of  course,  the  general 
principle  there  enunciated  may  be  modified  by  controlling  cir- 
cumstances in  other  eases ;  as  in  Prentiss  v.  Shaw,  56  Me,  437, 
cited  and  much  relied  on  by  these  defendants.  That  case  was  de- 
cided upon  its  peculiar  facts.  The  evidence  introduced  in  miti- 
gation there  was  mainly  to  show  the  innocent  intention  of  the 
parties  sued.  They  supposed  (as  they  claimed)  that  they  were 
acting  under  an  official  right  to  act.  They  had  received  (al- 
though improperly)  an  order,  from  persons  in  authority,  to 
make  the  arrest.  Their  own  motive  and  good  faith  in  obeying 
the  order,  had  much  to  do  with  the  question  as  to  how  far  puni- 
tive damages  should  be  recovered.  So  in  the  case  at  bar,  as  much 
evidence  was  admitted  as  would  fairly  show  what  the  motive  of 
the  defendants  was  in  the  assault  committed  by  them,  and  with 
what  coolness  and  deliberation,  or  otherwise,  the  act  was  done. 

The  other  exception  in  this  case  can  not  be  sustained.  But  one 
verdict  could  be  rendered.  Therefore  the  damages  must  be  joint, 
and  not  several.  The  question  is,  what  damages  has  the  plain- 
tiff sustained  ?  For  those,  whatever  they  are,  all  the  participants 
in  the  assault  are  liable.  There  are  no  degrees  of  guilt.  These 
principles  are  clearly  settled  and  stated  in  the  cases  cited  in 
argument.     *     *     *     The   general  verdict   must  stand. 

Exceptions  and  motion  overruled. 

All  concur. 


GOLDSMITH  v.  JOY. 

Vermont.   1889.     61  Vt.   488. 

Trespass  for  assault  and  battery  upon  plaintiff's  intestate, 
who  at  the  time  of  the  affray  was  suffering  from  Bright 's  disease 
and  subsequently  died  of  it.  It  was  claimed  that  his  death  was 
materially  hastened  by  the  assault.  Verdict  and  judgment  for 
plaintiff.     Exceptions  by  the  defendant. 

In  instructing  the  jury,  the  court,  among  other  things,  said: 
"Now,  then  in  respect  to  that  question,  mere  words  made  use  of 
by  one  person  to  another  are  no  legal  excuse  whatever  for  the  in- 
fliction of  personal  violence.    It  makes  no  difference  how  violent 


MITIGATION   OF   DAMAGES.  633 

the  lan^age  used  may  be,  no  man  has  the  right  to  use  personal 
violence  upon  another  when  he  is  induced  to  simply  by  the  use 
of  words.  That  is  no  defense  to  the  action.  But  when  you  come 
to  the  question  of  whether  a  particular  case  is  one  that  deserves 
the  awarding  of  exemplary  damages,  then  you  are  to  consider  all 
the  circumstances  in  the  case,  the  provocation,  if  any,  that  the  de- 
fendant had,  and  everything  that  is  calculated  on  the  one  hand 
to  aggravate  his  act,  and  on  the  other  hand  to  palliate  his  act, 
are  to  be  considered. 

"As  I  have  already  said  on  the  main  question  of  compensatory 
damages,  there  is  no  defense  here  whatever.  No  matter  what 
was  said,  no  matter  how  much  provocation  the  defendant  had,  he 
is  bound  to  answer  for  the  compensatory  damages  at  any  event. 
As  to  exemplary  damages,  in  the  exercise  of  a  wise  discretion 
you  will  not  allow  them  unless  you  are  satisfied  that  the  act  of 
the  defendant  was  high-handed,  wanton  and  inexcusable,  and  in 
determining  that  question  you  are  to  take  into  view  all  the  pro- 
vocation that  he  had.  Now,  then,  gentlemen,  if  the  provocation 
was  slight,  it  is  quite  different,  and  it  should  have  less  weight 
in  determining  the  question  whether  you  shall  award  exemplary 
damages  than  it  would  have  if  the  provocation  was  great. ' ' 

Tyler,  J.  The  court  instructed  the  jury  that  there  was  no  de- 
fense to  the  claim  for  actual  or  compensatory  damages;  that 
words  were  no  legal  excuse  for  the  infliction  of  personal  violence ; 
that  no  matter  how  great  the  provocation,  the  defendant  was 
bound  in  any  event  to  answer  for  these  damages. 

It  is  a  general  and  wholesome  rule  of  law  that  whenever,  by 
an  act  which  he  could  have  avoided  and  which  cannot  be  justified 
in  law,  a  person  inflicts  an  immediate  injury  by  force,  he  is 
legally  answerable  in  damages  to  the  party  injured. 

The  question  whether  provocative  words  may  be  given  in  evi- 
dence under  the  general  issue  to  reduce  actual  damages  in  an  ac- 
tion of  trespass  for  an  assault  and  battery  has  undergone  wide 
discussion. 

The  English  cases  lay  down  the  general  rule  that  provocation 
may  mitigate  damages.  The  case  of  Frazer  v.  Berkeley,  7  C.  &  P. 
789,  is  often  referred  to,  in  which  Lord  Abinger  held  that  evi- 
dence might  be  given  to  show  that  the  plaintiff  in  some  degree 
brought  the  thing  upon  himself ;  that  it  would  be  an  unwise  law 
if  it  did  not  make  allowance  for  human  infirmities ;  and  if  a  per- 


634  MITIGATION   OP   DAMAGES. 

son  I'omiuit  violence  at  a  time  when  he   is  smarting   under  im- 
mediate provocation,  that  is  matter  of  mitigation. 

TiNDAL,  Ch.  J.,  in  Perkins  v.  Vaughan,  5  Scott's  N.  R.  881, 
said :  "I  think  it  will  be  found  that  the  result  of  the  eases  is  that 
the  matter  cannot  be  given  in  evidence  where  it  amounts  to  a  de- 
fense, but  tluit  where  it  does  not  amount  to  a  defense,  it  may  be 
given  in  mitigation  of  damages."  Linford  v.  Lake,  3  H.  &;  N". 
275 ;  Addison  on  Torts,  §  1393,  recognizes  the  same  rule. 

In  this  country,  2  Greenl.  on  Ev.,  §  93,  states  the  rule  that  a 
provocation  by  the  plaintiff  may  be  thus  shown  if  so  recent  as 
to  induce  a  presumption  that  violence  was  committed  under  the 
immediate  influence  of  the  passion  thus  wrongfully  excited  by 
the- plaintiff.  The  earlier  cases  commonly  cited  in  support  of 
this  rule  are  Cushman  v.  Ryan,  1  Story,  100;  Avery  v.  Ray,  1 
]ilass.  12 ;  Lee  v.  Woolsey,  19  Johns.  241 ;  and  Maynard  v.  Berke- 
ley, 7  Wend.  560.  The  Supreme  Court  of  Massachusetts  has 
generally  recognized  the  doctrine  that  immediate  provocation 
may  mitigate  actual  damages  of  this  kind.  Mowry  v.  Smith,  9 
Allen,  67 ;  Tyson  v.  Booth,  100  Mass.  258 ;  Bonino  v.  Caledonio, 
144  Mass.  299.  It  is  also  said  in  2  Sedgwick  (7th  ed.),  521:  "If, 
making  due  allowance  for  the  infirmities  of  human  temper,  the 
defendant  has  reasonable  excuse  for  the  violation  of  public  or- 
der, then  there  is  no  foimdation  for  exemplary  damages,  and 
the  plaintiff  can  claim  only  compensation.  It  is  merely  the 
corollary  of  this,  that  when  there  is  a  reasonable  excuse  for  the 
defendant,  arising  from  the  provocation  or  fault  of  the  plaintiff, 
but  not  sufficient  entirely  to  justify  the  act  done,  there  can  be 
no  exemplary  damages,  and  the  circumstances  of  mitigation 
must  be  applied  to  the  actual  damages.  If  it  were  not  so  the 
plaintiff  would  get  full  compensation  for  damages  occasioned 
by  himself.  The  rule  ought  to  be  and  is,  practically,  mutual. 
:\Ialice  and  provocation  in  the  defendant  are  punished  by  in- 
flicting damages  exceeding  the  measure  of  compensation,  and 
in  the  plaintiff  by  giving  him  less  than  that  measure." 

In  Burke  v.  Melvin,  45  Conn.  243,  Park,  Ch.  J.,  held  that 
the  whole  transaction  should  go  to  the  jury.  "They  could  not 
ascertain  what  amount  of  damages  the  plaintiff  was  entitled  to 
receive  by  considering  a  part  of  the  transaction.  They  must 
look  at  the  w^hole  of  it.  They  must  ascertain  how  far  the  plain- 
tiff was  in  fault,  if  in  fault  at  all,  and  how  far  the  defendant, 
and  give  damages  accordingly.     The  difference  between  a  pro- 


MITIGATION   OF   DAMAGES.  635 

voked  and  an  unprovoked  assault  is  obvious.  The  latter  would 
deserve  punishment  beyond  the  actual  damages,  while  the  dam- 
ages in  the  other  case  would  be  attributable,  in  a  great  meas- 
ure, to  the  misconduct  of  the  plaintiff  himself. ' '  In  Bartram  v. 
Stone,  31  Conn.  159,  it  was  held  that  in  an  action  for  assault 
and  battery  the  defendant  might  prove,  in  mitigation  of  dam- 
ages, that  the  plaintiff,  immediately  before  the  assault,  charged 
;him  with  a  crime,  and  that  his  assault  upon  the  plaintiff  was 
occasioned  by  "sudden  heat,"  produced  by  the  plaintiff's  false 
accusation.    See  also  Richardson  v.  Hine,  42  Conn.    206. 

In  Kiff  V.  Youmans,  86  N.  Y.  324,  the  plaintiff  was  upon 
defendant's  premises  for  the  purpose  of  committing  a  trespass, 
and  the  defendant  assaulted  him  to  prevent  the  act,  and  the 
only  question  was  whether  he  used  unnecessary  force.  Dan- 
FORTH,  J.,  said:  "It  still  remains  that  the  plaintiff  provoked  the 
trespass,  was  himself  guilty  of  the  act  which  led  to  the  disturb- 
ance of  the  public  peace.  Although  this  provocation  fails  to 
justify  the  defendant,  it  may  be  relied  upon  by  him  in  mitiga- 
tion even  of  compensatory  damages.  This  doctrine  is  as  old 
as  the  action  of  trespass,  and  is  correlative  to  the  rule  which 
permits  circumstances  of  aggravation,  such  as  time  and  place  of 
an  assault,  or  insulting  words,  or  other  circumstances  of  indig- 
nity and  contumely  to  increase  them." 

In  Robinson  v.  Rupert,  23  Pa.  St.  523,  the  same  rule  is  adopted, 
the  court  saying:  "Where  there  is  a  reasonable  excuse  for  the 
defendant,  arising  from  the  provocation  or  fault  of  the  plain- 
tiff, but  not  sufficient  to  entirely  justify  the  act  done,  there  can  be 
no  exemplary  damages,  and  the  circumstances  of  mitigation 
must  be  applied  to  the  actual  damages." 

In  Ireland  v.  Elliott,  5  la.  478,  the  court  said:  "The  farthest 
that  the  law  has  gone,  and  the  farthest  that  it  can  go,  whilst 
attempting  to  maintain  a  rule,  is  to  permit  the  high  provocation 
of  language  to  be  shoun  as  a  palliation  for  the  acts  and  results 
of  anger;  that  is,  in  legal  phrase,  to  be  shown  in  mitigation  of 
damages." 

In  Thrall  v.  Knapp,  17  la.  468,  the  court  said:  "The  clear 
distinction  is  this :  contemporaneous  provocation  of  words  or 
acts  are  admissible,  but  previous  provocations  are  not,  and  the 
test  is  whether,  'the  blood  has  had  time  to  cool.'  "  *  *  * 
"The  law  affords  a  redress  for  every  injury.  If  the  plaintiff 
slandered  defendant's  daughtcr.s.  it  would  entirely  accord  with 


636  MITIGATION   OF   DAMAGES. 

his  natural  feeling  to  chastise  him ;  but  the  policy  of  the  law  is 
against  his  right  to  do  so,  especially  after  time  for  reflection. 
It  affords  a  peaceful  remedy.  On  the  other  hand  the  law  so 
completely  disfavors  violence,  and  so  jealously  guards  alike  in- 
dividual rights  and  the  public  peace  that,  if  a  man  gives  another 
a  cuff  on  the  ear,  though  it  costs  him  nothing,  no,  not  so  much 
as  a  little  diachylon,  yet  he  shall  have  his  action."  Per  Lord 
Holt,  2  Ld.  Raym.  955.  The  reasoning  of  the  court  seems  to 
make  against  his  rule  that  provocations  such  as  happen  at  the 
time  of  the  assault  may  be  received  in  evidence  to  reduce  the 
amount  of  the  plaintiff's  recovery. 

In  Moreley  and  Wife  v.  Dunbar,  24  Wis.  183,  Dixon,  Ch.  J., 
held;  that  notwithstanding  what  was  said  in  Birchard  v.  Booth, 
4  Wis.  85,  circumstances  of  provocation  attending  the  transac- 
tion, or  so  recent  as  to  constitute  a  part  of  the  res  gestcB,  though 
not  sufficient  entirely  to  justify  the  act  done,  may  constitute  an 
excuse  that  may  mitigate  the  actual  damages;  and,  where  the 
provocation  is  great  and  calculated  to  excite  strong  feelings  of 
resentment,  may  reduce  them  to  a  sum  which  is  merely  nominal. 
But  in  Wilson  v.  Young,  31  Wis.  574,  it  was  held  by  a  majority 
of  the  court  that  provocation  could  go  to  reduce  compensatory 
damages  only  so  far  as  these  should  be  given  for  injury  to  the 
feelings,  Dixon,  Ch.  J.,  however,  adhering  to  the  rule  in  Moreley 
V.  Dunbar,  that  it  might  go  to  reduce  all  compensatory  dam- 
ages ;  but  in  Fenelon  v.  Butts,  53  Wis.  344,  and  in  Corcoran  v. 
Harron,  55  Wis.  120,  it  was  clearly  held  that  personal  abuse  of 
the  assailant  by  the  party  assaulted  may  be  considered  in  miti- 
gation of  punitory,  but  not  of  actual  damages,  which  include  those 
allowed  for  mental  and  bodily  suffering ;  that  a  man  commencing 
an  assault  and  battery  under  such  circumstances  of  provocation 
is  liable  for  the  actual  damages  which  result  from  such  assault. 

In  Donnelly  v.  Harris  et  al.,  41  111.  126,  the  court  instructed 
the  jury  that  words  spoken  might  be  considered  in  mitigation  of 
damages.  Walker,  Ch.  J.,  in  delivering  the  opinion  of  the  Su- 
preme Court  remarked :  ' '  Had  this  modification  been  limited  to 
exemplary  damages  it  would  have  been  correct,  but  it  may  well 
have  been  understood  by  the  jury  as  applying  to  actual  dam- 
ages, and  they  would  thus  have  been  misled.  To  allow  them  the 
effect  to  mitigate  actual  damages  would  be  virtually  to  allow  them 
to  be  used  as  a  defense.  To  say  they  constitute  no  defense,  and 
then  say  they  may  mitigate  all  but  nominal  damages,  would,  we 


MITIGATION   OF    DAMAGES.  637 

think,  be  doing  by  indirection  what  has  been  prohibited  from 
being  done  directly.  To  give  to  words  this  effect,  would  be  to 
abrogate,  in  effect,  one  of  the  most  firmly  established  rules  of  the 
law."  See  also  Ogden  v.  Claycomb,  52  111.  366.  In  Gizler  v. 
Witzel,  82  111.  322,  the  court  said  in  reference  to  the  charge 
of  the  court  below :  ' '  The  third  instruction  tells  the  jury  among 
other  things  that  the  plaintiff,  in  order  to  recover,  should  have 
been  guilty  of  no  provocation.  This  is  error.  It  is  wholly  im- 
material what  language  he  may  have  used,  so  far  as  the  right 
to  maintain  an  action  is  concerned,  and  even  if  he  went  beyond 
words  and  committed  a  technical  assault,  the  acts  of  the  defend- 
ant must  still  be  limited  to  a  reasonable  self-defense." 

In  Norris  v.  Casel,  90  Ind.  143,  this  precise  question  was  not 
raised,  but  the  court  said  in  reference  to  the  instructions  of  the 
court  below,  that  the  first  part  of  the  charge,  that  the  provoca- 
tion by  mere  words,  however  gross  and  abusive,  cannot  justify 
an  assault,  was  correct,  and  that  a  person  who  makes  such  words 
a  pretext  for  committing  an  assault,  commits  thereby  not  only 
a  mere  wrong,  but  a  crime,  and  the  person  so  assaulted  is  not 
deprived  of  the  right  of  reasonable  self-defense,  even  though 
he  used  the  insulting  language  to  provoke  the  assault  against 
which  he  defends  himself;  but  whatever  may  have  been  his 
purpose  in  using  the  abusive  language,  it  cannot  be  made  an 
excuse  for  the  assault. 

Johnson  v.  McKee,  27  Mich.  471,  was  a  case  very  similar  to 
the  one  at  bar,  and  was  given  to  the  jury  under  like  instructions. 
The  Supreme  Court  said:  "In  regard  to  provocation,  the  court 
charged  in  effect,  that  if  plaintiff  provoked  defendant,  and  the 
assault  was  the  result  of  that  provocation,  he  could  recover 
nothing  beyond  his  actual  damages  and  outlays,  and  would  be 
precluded  from  claiming  any  damages  for  injured  feelings  or 
mental  anxiety.  In  other  words  he  would  be  cut  off  from  all 
the  aggravated  damages  allowed  in  cases  of  willful  injury,  and 
sometimes  loosely  called  exemplary  damages.  As  there  is  no 
case  in  which  a  party  who  is  damaged  and  is  allowed  to  recover 
anything  substantial,  cannot  recover  his  actual  damages,  the 
rule  laid  down  by  the  court  was  certainly  quite  liberal  enough, 
and  if  any  one  could  complain  it  w^as  not  the  defendant." 

The  court  said  in  Prentiss  v.  Shaw,  56  Me.  712:  "We  under- 
stand the  rule  to  be  this:  a  party  shall  recover  as  a  pecuniary 
recompense  the  amount  of  money  which  shall  be  a  remuner- 


638  MITIGATION    OP    DAMAGES. 

atioii,  as  near  as  maj-  be,  for  the  actual,  tangible,  and  imme- 
diate result,  iujur}^  or  consequence  of  the  trespass  to  his  person 
or  property.  *  *  *  if  the  assault  was  illegal  and  unjustified, 
why  is  not  the  plaintifi;  in  such  case  entitled  to  the  benefit  of 
the  general  rule,  before  stated,  that  a  party  guilty  of  an  illegal 
trespass  on  another's  person  or  property,  must  pay  all  the  dam- 
ages to  such  person  or  property,  directly  and  actually  resulting 
from  the  illegal  act.  *  *  *  "Where  the  trespass  or  injury  is 
upon  personal  or  real  property  it  would  be  a  novelty  to  hear  a 
claim  for  a  reduction  of  the  actual  injury  based  on  the  ground 
of  provocation  by  w^ords.  If,  instead  of  the  owner's  arm,  the 
assailant  had  broken  his  horse's  leg,  *  *  *  must  not  the 
defendant  be  held  to  pay  the  full  value  of  the  horse  thus  ren- 
dered useless?"  The  learned  judge  admits  that  the  law  has 
sanctioned,  by  a  long  series  of  decisions,  the  admission  of  evi- 
dence tending  to  show,  on  one  side,  aggravation,  and  on  the 
other,  mitigation  of  the  damages  claimed,  but  he  holds  the  law 
to  be  that  mitigating  circumstances  can  only  be  set  against  ex- 
emplary damages,  and  cannot  be  used  to  reduce  the  actual  dam- 
ages directly  resulting  from  the  defendant's  unlawful  act. 

In  a  learned  article  on  damages,  in  actions  ex  delicto,  3  Am. 
Jur.  287,  it  is  said:  "If  the  law  awards  damages  for  an  injury, 
it  would  seem  absurd,  even  without  resorting  to  the  definition 
of  damages,  to  say  that  they  shall  be  for  a  part  only  of  the 
injury." 

"It  is  a  reasonable  and  a  legal  principle  that  the  compensa- 
tion should  be  equivalent  to  the  injury.  There  may  be  some 
occasional  departures  from  this  principle,  but  I  think  it  will  be 
found  safest  to  adhere  to  it  in  all  cases  proper  for  a  legal  in- 
demnification in  the  shape  of  damages."  Ch.  J.  Shippen,  4 
Dall.  207. 

Jacobs  V.  Hoover,  9  Minn.  204,  Cushman  v.  Waddell,  Bald- 
win, 57,  and  McBride  v.  McLaughlin,  5  Watts,  375,  are  strong 
authorities  in  support  of  the  rule  that  provocative  language 
used  by  the  plaintiff  at  the  time  of  the  battery  should  be  given  in 
evidence  only  in  mitigation  of  exemplary  damages,  and  that  un- 
less the  plaintiff  has  given  the  defendant  a  provocation  amount- 
ing in  law  to  a  justification  he  is  entitled  to  receive  compensa- 
tion for  the  actual  injury  sustained. 

If  provocative  words  may  mitigate,  it  follows  that  they  may 
reduce  the  damages  to  a  mere  nominal  sum  and  thus  practically 


MITIGATION   OF   DAMAGES.  639 

justify  an  assault  and  battery.  But  why  under  this  rule  may 
they  not  fully  justify?  If  in  one  case,  the  provocation  is  so 
great  that  the  jury  may  award  only  nominal  damages,  why,  in 
another,  in  which  the  provocation  is  far  greater,  should  they 
not  be  permitted  to  acquit  the  defendant  and  thus  overturn  the 
well-settled  rule  of  law,  that  words  cannot  justify  an  assault? 
On  the  other  hand  if  words  cannot  justify  they  should  not  miti- 
gate. A  defendant  should  not  be  heard  to  say  that  the  plain- 
tiff was  first  in  the  wrong  by  abusing  him  with  insulting  words 
and  therefore,  though  he  struck  and  injured  the  plaintiff,  he  was 
only  partly  in  the  wrong  and  should  pay  only  part  of  the  actual 
damages. 

If  the  right  of  the  plaintiff  to  recover  actual  damages  were 
in  any  degree  dependent  on  the  defendant's  intent,  then  the 
plaintiff's  provocation  to  the  defendant  to  commit  the  assault 
upon  him  would  be  legitimate  evidence  bearing  upon  that  ques- 
tion, but  it  is  not.  Even  lunatics  and  idiots  are  liable  for  actual 
damages  done  by  them  to  the  property  or  person  of  another, 
and  certainly  a  person  in  the  full  possession  of  his  faculties 
should  be  held  liable  for  his  actual  injuries  to  another  unless 
done  in  self-defense  or  under  reasonable  apprehension  that  the 
plaintiff  was  about  to  do  him  bodily  harm.  The  law  is  that  a 
person  is  liable  in  an  action  of  trespass  for  an  assault  and  bat- 
tery, although  the  plaintiff  made  the  first  assault,  if  the  defend- 
ant used  more  force  than  was  necessary  for  his  protection,  and 
the  symmetry  of  the  law  is  better  preserved  by  holding  that 
the  defendant's  liability  for  actual  damages  begins  with  the 
beginning  of  his  own  wrongful  act.  It  is  certainly  in  accord- 
ance with  what  this  court  held  in  Rowland  v.  Day  &  Dean, 
56  Vt.  318,  that,  "That  law  abhors  the  use  of  force  either  for 
attack  or  defense,  and  never  permits  its  use  unnecessarily." 

Exemplary  damages  are  not  recoverable  as  matter  of  right, 
but  as  was  stated  by  Wheeler,  J.,  in  Earl  and  Wife  v.  Tupper, 
45  Vt.  275,  they  are  given  to  stamp  the  condemnation  of  the 
jury  upon  the  acts  of  the  defendant  on  account  of  their  ma- 
licious or  oppressive  character.  Boardman  v.  Goldsmith,  48 
Vt.  403,  and  cases  cited ;  Mayne  on  Dam.  5865 ;  Voltz  v.  Black- 
mer,  64  N.  Y.  440. 

The  instructions  to  the  jury  upon  this  branch  of  the  case  were 
in  substantial  accordance  with  the  law  as  above  stated.  As 
exemplary  damages  were   awardable   in  the   discretion  of  the 


640  MITIGATION    OF    DAMAGES. 

jury,  the  charge  was  also  correct  that  the  influence  of  an  ex- 
ample in  a  case  of  this  kind  depended  on  the  character  and 
standing  of  the  parties  involved. 

We  tind  no  error   in  the  charge,  and  the  judgment  is  af- 
firmed. 


NICKOLL  V.  ASHTON. 

L.  R.  1900.     2  g.  B.  298. 

Mathew,  J.  This  is  an  action  brought  to  recover  damages 
for  breach  of  a  contract  dated  October  24,  1899,  whereby  the 
defendants  sold  to  the  plaintiffs  a  cargo  of  Egyptian  cotton- 
seed to  be  shipped  at  Alexandria,  Port  Said  and  Ismailia 
during  the  month  of  January,  1900,  by  the  steamship  Orlando 
at  6  1.  3s.  9d.  per  ton.  After  the  contract  had  been  so  made  the 
Orlando,  which  was  then  in  the  Baltic,  was  stranded  by  perils 
of  the  sea,  and  was  so  damaged  as  to  render  it  impossible  for 
her  to  arrive  at  the  port  of  loading  within  the  time  stipulated; 
and  notice  of  that  fact  was  on  December  20  given  to  the  plain- 
tiffs. Thereupon  there  was  a  proposal  made  to  settle  any  dispute 
between  the  parties  by  arbitration ;  but  the  attempt  to  arbitrate 
became  abortive,  and  the  case  came  into  court  and  was  tried 
before  me. 

It  was  contended  on  behalf  of  the  plaintiffs  that  the  con- 
tract to  ship  the  cargo  in  January  was  absolute,  and  that  a 
warranty  should  therefore  be  implied  that  the  ship  would  then 
be  fit  to  take  the  cargo  on  board.  It  was  said  that  the  defend- 
ants, not  having  provided  by  the  terms  of  their  contract  against 
such  a  contingency,  took  upon  themselves  the  risk  of  the  ship 
being  lost  or  disabled  by  perils  of  the  sea.  The  principle  upon 
which  the  plaintiffs  rested  their  contention  is  indicated  in  a 
number  of  cases  of  which  the  recent  case  of  Ashmore  &  Son  v. 
Cox  &  Co.,  1899,  1  Q.  B.  436,  is  an  instance. 

On  the  other  hand,  it  was  contended  for  the  defendants  that 
it  was  unreasonable  to  imply  such  a  warranty,  for  no  man  of 
business  would  be  likely  in  such  a  contract  to  insure  the  safety 
of  the  ship  from  the  date  of  the  contract  till  the  following 
January.  Both  parties,  it  was  said,  assumed  that  the  ship 
would  be  fit  to  fulfill  her  engagement,  and  therefore  had  con- 
templated her  continued  existence  and  fitness  to  take  the  cargo 


MITIGATION    OF    DAMAGE.^.  641 

on  board  as  the  basis  of  what  was  to  be  done.     It  was  argued 
that  a  condition  ought  to  be  implied  that  the  defendants  should 
be  excused  from  performance  of  the  contract  when  performance 
became  impossible  by  the  loss  or  damage  of  the  ship  by  sea  peril. 
Many  cases  were  cited  in  support  of  this  contention  but  reliance 
was  principally  placed  upon  the  statement  of  the  law  by  Black- 
bum,  J.,  in  Taylor  v.  Caldwell,  3  B.  &  S.  at  p.  833,  which  is  in 
these  terms:     "There  seems  no  doubt  that  where  there   is  a 
positive  contract  to  do  a  thing  not  in  itself  unlawful,  the  con- 
tractor must  perform  it  or  pay  damages  for  not  doing  it,  al- 
though   in    consequence   of   unforeseen    accidents   the    perform- 
ance of  his  contract  has  became  unexpectedly  burthensome  or 
even    impossible.     *     *     *     But    this   rule   is    only   applicable 
when  the  contract  is  positive  and  absolute,  and  not  subject  to 
any  condition  either  express  or  implied;  and  there  are  authori- 
ties which,  as  we  think,  establish  the  principle  that  where,  from 
the  nature  of  the  contract,  it  appears  that  the  parties  must  from 
the  beginning  have  known  that  it  could  not  be  fulfilled  unless 
when  the  time  for  the  fulfillment  of  the  contract  arrived  some 
particular  specified  thing  continued  to  exist,  so  that,  when  en- 
tering into  the  contract,  they  must  have  contemplated  such  con- 
tinuing existence  as  the  foundation  of  what  was  to  be  done ;  there, 
in  the  absence  of  any  express  or  implied  warranty  that  the  thing 
shall  exist,  the  contract  is  not  to  be  construed  as  a  positive  con- 
tract, but  as  subject  to  an  implied  condition  that  the  parties 
shall  be  excused  in  case,  before  breach,  performance  becomes  im- 
possible from  the  perishing  of  the  thing  without  default  of  the 
contractor."     In  the  course  of  argument  cases  were  referred  to 
as  showing  that  that  principle  is  well  established  in  the  law,  and 
it  may  be  pointed  out  that  it  is  recognized  in  the  Sale  of  Goods 
Act,  1893,  s.  7  of  which  provides  that  "Where  there  is  an  agree- 
ment to  sell  specific  goods  and  subsequently  the  goods,  without 
any  fault  on  the  part  of  the  seller  or  buyer,  perish  before  the 
risk  passes  to  the  buyer,  the  agreement  is  thereby  avoided," 
It  seems  to  me  that  the  defendants'  contention  is  right,  and 
that  under  the  circumstances  the  contract  was  at  an  end.    It  had 
become  impossible  of  performance,  and  the  condition  ought  to 
be  implied  that  neither  party  was  to  be  bound. 

It  was  further  contended  for  the  plaintiffs  that,  although 
such  an  implication  might  arise  under  other  circumstances,  it 
was  not  reasonable  having  regard  to  the  provisions  of  clause  5 

41 


042  IMITIGATION    OF   DAMAGES. 

of  the  contract,  which  Mas  in  the  following  terms:  "In  case 
of  prohibition  of  export,  blockade,  or  hostilities,  preventing  ship- 
ment, this  contract  or  any  imfulliiled  })art  thereof  is  to  be 
cancelled."  It  was  said  that  that  clause  contained  the  sole  con- 
ditions on  which  the  conti-act  was  not  to  be  binding,  and  that  no 
additional  condition  ought  to  be  implied,  upon  the  principle  that 
exprcssum  focit  cessare  taciturn.  The  conditions,  however,  are 
not  repugnant.  They  are  all  useful  and  reasonable.  And  the 
implied  condition  contended  for  by  the  defendants  applies  to  a 
different  stage  of  the  transaction  from  that  contemplated  by 
clause  5.  T  therefore  think  that  that  contention  of  the  plaintiff 
fails. 

B"ut  then  it  was  asked.  How  far  is  the  implication  of  this  con- 
dition to  go?  Is  it  to  be  implied  in  all  cases,  as,  for  example, 
where  the  shipowner  sends  the  vessel  to  another  port,  or  absolutely 
refuses  to  take  the  cargo  on  board?  The  answer  is  that  in  such 
a  case  the  implication  would  not  be  reasonable,  for  the  plaintiffs 
would  naturally  assume  that  the  defendants  were  protected  by 
a  contract  of  charterparty  which  would  bind  the  shipo^^^ler  to 
take  the  cargo  on  board,  and  that  there  would  consequently 
be  a  remedy  over  against  him  if  he  refused  to  do  so. 

There  is  one  other  matter  which  was  much  discussed  in  argu- 
ment, and  to  which,  although  it  is  unnecessary  for  the  purposes 
of  my  judgment,  I  should  like  to  refer,  and  that  is  the  question 
as  0  what  would  have  been  the  proper  measure  of  damages  if 
the  plaintiffs  had  been  entitled  to  recover.  It  appeared 
thai  towards  the  end  of  December  the  plaintiffs  might  have  ob- 
tained another  cargo  at  the  then  market  price,  which  was  much 
lower  than  the  price  at  the  end  of  January.  But  it  was  insisted  for 
the  plaintiffs  that  they  were  entitled  to  wait  and  watch  the  rising 
market  until  the  end  of  January,  and  then  claim  their  damages 
on  the  footing  of  the  then  market  price.  In  my  opinion  that  con- 
tention was  wholly  untenable.  Having  regard  to  the  decision 
in  Roth  &  Co.  v.  Taysen,  1  Cora.  Cas.  306,  I  think  the  plaintiffs 
were  boimd  to  endeavor  to  mitigate  the  loss  by  acting  as  or- 
dinary men  of  business  would  have  acted,  that  is  to  say,  by 
determining  the  liability  at  the  earliest  date  at  which  they 
were  able  to  obtain  another  cargo.  There  must  be  judgment  for 
the  defendants. 

Judgment  for  defendants. 


MITIGATION    OF    DAMAGES.  643 

In  an  action  of  trespass  de  honi^  asportatis,  when  the  goods  taken 
by  the  trespasser  are  restored  to  the  plaintiff  and  accepted  by  him, 
that  fact  may  be  shown  in  mitigation  of  damages.  Hopple  v.  Higbee, 
3  Zab.  342. 

Evidence  of  the  plaintiff's  general  bad  character,  in  an  action  of 
slander,  is  admissible  in  mitigation  of  damages.  Sayre  v.  Sayre,  1 
Dutcher  235. 

In  an  action  for  slander  imputing  unchastity  to  a  married  woman, 
the  wife  of  plaintiff,  it  is  allowable  for  defendant  to  prove  the  woman's 
general  reputation  for  chastity  was  bad.    Duval  v.  Davey,  32  Oh,  St.  604. 

Sick  benefits  received  by  the  plaintiff  from  any  source  other  than 
the  defendant  cannot  be  considered  by  the  jury  in  making  up  their 
verdict.     Baltimore  City  Passenger  Ry.  Co.  v.  Baer,  90  Md.  97. 


XIII.     INTEREST. 
ATWOOD  V.  BOSTON  FORWARDING  &  TRANSFER  CO. 

Massachusetts,  1904.     185  Mass.  557. 

Knowlton,  C.  J.  The  plaintiffs'  horse  was  seriously  injured 
through  negligence  for  which  the  defendant  is  liable,  and,  after 
unavailing  efforts  for  nearly  a  month  to  cure  him,  he  was  killed. 
The  exceptions  relate  to  the  question  whether  the  plaintiffs, 
having  a  reasonable  expectation  that  the  horse  could  be  cured, 
and  that  their  damages  could  be  lessened  by  an  attempt  to  cure 
him,  are  entitled  to  recover  such  a  sum  as  they  reasonably  and 
prudently  expended  in  making  this  attempt.  The  defendant 
asked  the  court  to  rule  that  in  no  event  can  the  damages  exceed 
the  value  of  the  horse  at  the  time  of  the  injury. 

When  an  animal  is  killed  throught  the  fault  of  the  defendant, 
the  damage  which  the  owner  may  recover  is  the  value  of  the 
animal  at  the  time  of  the  injury.  But  if  an  animal  is  injured 
in  such  a  way  that  proper  care  and  attention  reasonably  may  be 
expected  to  effect  a  cure,  which  will  leave  the  damage  from  the 
injury  much  less  than  if  he  died,  it  is  the  duty  of  the  owner  to 
give  it  such  care  and  attention,  in  order  that  the  damages  may 
not  be  augmented  by  neglect.  Tindall  v.  Bell,  11  M.  &  W.  228 ; 
Graves  v.  Moses,  13  Minn.  337.  The  expense  properly  incurred 
for  this  purpose  is  a  part  of  the  damage  to  the  owTier,  for  which 
he  is  entitled  to  compensation,  as  well  as  for  the  diminution  in 
value  or  other  loss  that  may  finally  result  directly  from  the  in- 
jury notwithstanding  these  efforts.  Gillett  v.  Western  Railroad 
Co.,  8  Allen,  560;  Johnson  v.  Holyoke,  105  Mass.  80;  Wheeler 
V.  To\\Ti  of  Townshend,  42  Vt.  15;  Street  v.  Laumier,  34  Mo. 
469.  These  expenses  reasonably  incurred  in  making  a  proper 
effort  to  diminish  the  loss  are  to  be  paid  as  well  when  the  effort 
is  unavailing  as  when  it  is  successful.  It  would  be  most  unjust 
to  impose  upon  an  ovmar  the  duty  of  trying  to  effect  a  cure, 
if  that  is  what  ought  to  be  done,  and  to  leave  him  remediless 
for  expenses  so  incurred  if  his  attempt  proves  unsuccessful. 
Of  course,  he  is  bound  to  act  in  good  faith,  and  to  exercise  a 

644 


INTEREST.  645 

sound  discretion,  so  as  not  to  make  an  unreasonable  expenditure, 
in  reference  to  the  probability  of  diminishing  the  damages;  but 
if  money  is  prudently  expended  in  the  hope  of  mitigating  the 
injury,  and  notwithstanding  this  the  animal  is  lost,  there  is  no 
good  reason  why  this  expense,  as  well  as  the  value  of  the  animal, 
should  not  be  included  as  a  part  of  the  damages.  This  is  in 
accordance  with  the  weight  of  authority.  Watson  v.  Proprietors 
of  the  Lisbon  Bridge,  14  Me.  201;  Board  of  Commissioners  of 
Sullivan  County  v.  Arnett,  116  Ind.  438 ;  Gulf,  C.  &  S.  F.  R.  Co. 
V.  Keith,  74  Tex.  287 ;  St.  Louis,  I.  M.  &  S.  Railway  v.  Biggs,  50 
Ark.  169.  See,  also,  Ellis  v.  Hilton,  78  :\Iich.  150 ;  2  Sedgwick 
on  Dam.  (8th  Ed.)  17;  1  Sutherland  on  Dam.  (3d  Ed.)  §  67. 
We  are  of  opinion  that  there  was  no  error  in  the  ruling  given  on 
this  point. 

The  defendant  contends  that  the  jury  ought  not  to  have  been 
instructed  to  add  interest  in  making  up  their  verdict.  We 
think  that  in  this  commonwealth  interest,  eo  nomine,  is  not  al- 
lowed in  this  class  of  cases,  but  that,  in  determining  the  amount 
of  damages,  the  jury  may  consider  the  lapse  of  time  since  the 
injury,  and  the  fact  that  their  assessment  is  to  be  made  on  the 
day  of  the  verdict  for  a  loss  which  occurred  a  long  time  before. 
This  may  be  necessary  to  make  the  compensation  adequate. 
Frazer  v.  Bigelow  Carpet  Co.,  141  Mass.  126;  Ainsworth  v. 
Laking,  180  Mass.  397-402.  For  the  reasons  stated  in  the  case 
last  cited,  we  do  not  think  the  defendant  is  shown  to  have  been 
injured,  so  as  to  make  a  new  trial  necessary. 

Exceptions  overruled. 


BERNHARD  v.  ROCHESTER  GERMAN  INS.  CO. 

Connecticut,   1906.     79  Conn.   388. 

Action  to  recover  on  a  fire  insurance  policy,  brought  in  the 
Superior  Court,  where  a  demurrer  to  the  complaint  was  over- 
ruled. A  judgment  was  rendered  for  the  plaintiff  and  defend- 
ant appeals. 

Prentice,  J.  The  defendant  issued  its  policies  to  the  plaintiff 
upon  his  dwelling  house  and  its  contents.  A  fire  occurred.  The 
insured  is  now  seeking  to  recover  upon  the  policies  on  account 
of  the  loss  thereby  occasioned.     The  facts  found  disclose    (1) 


G40'  INTEREST. 

that  the  required  proofs  of  k:)ss  were  not  furnished  to  the  de- 
fendant within  the  time  prescribed  therefor;  and  (2)  that  no 
award  has  been  made  by  the  appraisers  to  whom  the  ascertain- 
ment of  the  amounts  of  loss  had,  prior  to  the  suit,  been  sub- 
mitted. The  defendant  contends  that  each  of  these  facts  is  suf- 
ficient to  preclude  the  plaintiff's  recovery.     *     *     * 

In  rendering  judgment  the  court  included  interest  from  July 
1,  1901,  being  the  date  of  the  defendant's  repudiation  of  lia- 
bility, upon  the  amount  of  the  loss  upon  the  personal  property, 
but  none  upon  the  amount  of  the  building  loss.  The  defendant 
complains  of  the  inclusion  of  this  interest.  The  court  made  its 
distinction  between  the  two  losses  upon  the  ground  that  the 
latter  loss  was  not  definitely  ascertainable  until  it  was  deter- 
mined by  the  judgment  of  the  court,  while  there  was  no  serious 
controversy  between  the  parties  as  to  the  amount  of  the  former. 
There  was  no  error  in  the  action  of  the  court;  neither  would 
there  have  been  had  interest  upon  the  other  loss  been  included. 
By  the  inclusion  of  interest  upon  the  amoiuits  which  the  policies 
obligated  the  defendant  to  pay  from  the  time  wiien  it  refused 
recognition  of  any  liability  and  put  an  end  to  the  prescribed 
processes  of  adjustment,  and  by  such  inclusion  only  could  the 
court  compensate  the  plaintiff  for  what  he  had  suffered  by  rea- 
son of  the  delay  resulting  from  the  defendant's  wrongful  act. 
' '  Interest  by  our  law  is  allowed  on  the  groimd  of  some  contract, 
express  or  implied,  to  pay  it,  or  as  damage  for  the  breach  of 
some  contract  or  the  violation  of  some  duty."  Selleck  v.  French, 
1  Conn.  32,  33,  6  Am.  Dec.  185.  This  court  has  never  adopted 
for  general  application  the  arbitrary  rule  that  interest  upon 
unliquidated  demands  will  not  be  allowed  as  damages.  On  the 
contrary,  we  have  long  and  repeatedly  held  that,  in  certain 
classes  of  cases,  such  an  element  of  damage  was  one  to  be  prop- 
erly taken  into  account.  White  v.  Webb,  15  Conn.  305;  Clark 
V.  Whittaker,  19  Conn.  319,  48  Am.  Dec.  160 ;  Cook  v.  Loomis, 
26  Conn.  483;  Oviatt  v.  Pond,  29  Conn.  479,  485;  Clark  v. 
Clark,  46  Conn.  586,  590 ;  Union  Hardware  Co.  v.  Plume  &  At- 
wood  Mfg.  Co.,  58  Conn.  219,  222,  20  Atl.  455;  Regan  v.  New 
York  &  N.  E.  R.  Co.,  60  Conn.  124,  142,  22  Atl.  503,  25  Am.  St. 
Rep.  306 ;  Healy  v.  Fallon,  69  Conn.  235,  37  Atl.  495 ;  New  York, 
X.  H.  &  H.  R.  Co.  V.  Ansonia  L.  &  W.  P.  Co.,  72  Conn.  703,  705, 
46  Atl.  157. 

The  purpose  sought  in  awarding  damages  other  than  vindictive 


INTEREST.  647 

is  to  make  a  fair  compensatiou  to  one  who  has  suffered  an  in- 
jury. Barker  v.  Lewis  Storage  &  Transfer  Co.,  78  Conn.  198. 
Courts  are  more  and  more  coming  to  recognize  that  a  rule  for- 
bidding an  allowance  for  interest  upon  unliquidated  damages  is 
one  well  calculated  to  defeat  that  purpose  in  many  cases,  and 
that  no  right  reason  exists  for  drawing  an  arbitrary  distinction 
between  liquidated  and  unliquidated  damages.  Sedgwick  on 
Damages  (8th  Ed.)  §§  299,  300,  312,  315.  There  are  actions  to 
which  the  suggested  rule  is  applicable.  Kegan  v.  New  York  & 
N.  E.  R.  Co.,  60  Conn.  12-4.  Others,  however,  present  con- 
ditions where  without  an  allowance  for  interest,  although  the 
demand  may  be  unliquidated,  fair  compensation  for  the  injury 
done  would  not  be  accorded  and  justice  thus  denied.  The  de- 
termination of  whether  or  no  interest  is  to  be  recognized  as  a 
proper  element  of  damage  is  one  to  be  made  in  view  of  the  de- 
mands of  justice  rather  than  through  the  application  of  any 
arbitrary  rule.  New  York,  N.  H.  &  H.  R.  Co.  v.  Ansonia  L.  & 
W.  P.  Co.,  72  Conn.  703,  705. 

There  is  no  error.    The  other  Judges  concurred. 

In  actions  for  tort,  in  absence  of  statute,  interest  is  not  in  general 
allowable  as  an  absolute  right.  Drumm-Flato  Com'n.  Co.  v.  Edmisson, 
208  U.  S.  534. 

In  Frazer  v.  Bigelow  Carpet  Co.  141  Mass.  126,  it  was  held  that  in 
action  for  the  negligent  destruction  of  property  interest  is  allowed. 

Interest  is  not  allowed  as  a  matter  of  law  in  cases  of  tort.  Its 
allowance  as  damages  rests  in  the  discretion  of  the  jury.  Lincoln  v. 
Claflin  7  Wall.  139. 

A  partner  who  fails  to  pay  in  his  contribution  to  the  capital  stock 
is  liable  for  interest  thereon.     Delp  v.  Edlis,  190  Pa.  25. 

Bonds  and  coupons  by  universal  usage  and  custom  have  all  the 
qualities  of  commercial  paper  and  interest  is  allowed  upon  them. 
Aurora  City  v.  West,  7  Wall.  82. 

In  a  case  of  eminent  domain,  interest  cannot  be  allowed  until  the 
possession  of  the  property  has  been  taken.  South  Park  Com'r.  v. 
Dunlevy,  91  111.  49.    See  also  Old  Colony  Railroad  v.  Miller,  125  Mass.  1. 

In  an  action  for  rent,  •  the  defendant  can  be  charged  with  interest 
upon  each  item  of  rent  from  the  time  when  it  fell  due.  Van 
Rensselaer  v.  Jewett,  2  N.  T.  135. 

Interest  is  not  allowed  in  a  case  of  personal  injuries  resulting  from 
the  negligence  of  the  defendant.  Louisville  &  Nashville  Ry.  Co.  v. 
Wallace,  91  Tenn.  35. 


XIV.     EXPENSES  OF  LITIGATION. 

DAY  V.  WOODWORTH. 

United  States   Supreme   Court,   1851.     13   How.   3G3. 

This  was  an  action  of  trespass  quare  clausum  fregit,  brought 
by  Day,  a  citizen  of  New  York  against  the  defendants  for  pull- 
ing down  a  mill-dam  in  Great  Harrington,  Masschusetts. 

Grier,  j  *  *  *  The  great  question  on  the  trial  of  this 
case, .  appears  to  have  been  whether  the  plaintiff's  dam  was 
higher  than  he  had  a  right  to  maintain  it,  and  if  so,  whether  the 
defendants  had  torn  down  more  of  it,  or  made  it  lower  than  they 
had  a  right  to  do. 

The  plaintiff's  counsel  requested  the  court  to  instruct  the 
jury  that  "they  might  allow  counsel-fees,  etc.,  if  there  was  any 
expense  in  taking  down  more  of  the  dam  than  was  justifiable," 
and  gave  as  a  reason  that  the  defendants  thereby  became  tres- 
passers ab  initio. 

The  court  instructed  the  jury  "that  if  they  should  find  for 
the  plaintiff  on  the  first  ground,  viz.,  that  the  defendants  had 
taken  down  more  of  the  dam  than  was  necessary  to  relieve  the 
mills  above,  unless  such  excess  was  wanton  and  malicious,  then 
the  jury  would  allow  in  damages  the  cost  of  replacing  such  ex- 
cess, and  compensation  for  any  delay  or  damage  occasioned  by 
such  excess,  but  not  anything  for  counsel  fees  or  extra  compensa- 
tion to  engineers." 

This  instruction  of  the  court  is  excepted  to,  on  two  grounds. 
First,  because  "this  being  an  action  of  trespass,  the  plaintiff 
was  not  limited  to  actual  damages  proved,"  and  secondly,  that 
the  jury,  under  the  conditions  stated  in  the  charge,  should  have 
been  instructed  to  include  in  their  verdict  for  the  plaintiff,  not 
only  the  actual  damages  suffered,  but  his  counsel  fees  and  other 
expenses  incurred  in  prosecuting  his  suit. 

It  is  a  well-established  principle  of  the  common  law,  that  in 
actions  of  trespass  and  all  actions  on  the  case  for  torts,  a  jury 
may  inflict  wliat  are  called  exemplary,  punitive,  or  vindictive 
damages  upon  a  defendant,  having  in  view  the  enormity  of  his 

648 


EXPENSES  OP  LITIGATION.  649 

offence  rather  than  the  measure  of  compensation  to  the  plain- 
tiff. We  are  aware  that  the  propriety  of  this  doctrine  has  been 
questioned  by  some  writers;  but  if  repeated  judicial  decisions 
for  more  than  a  century  are  to  be  received  as  the  best  exposition 
of  what  the  law  is,  the  question  will  not  admit  of  argument.  By 
the  common  as  well  as  by  statute  law,  men  are  often  punished 
for  aggravated  misconduct  or  lawless  acts,  by  means  of  a  civil 
action,  and  the  damages,  inflicted  by  way  of  penalty  or  punish- 
ment, given  to  the  party  injured.  In  many  civil  actions,  such 
as  libel,  slander,  seduction,  &c.,  the  wrong  done  to  the  plaintiff 
is  incapable  of  being  measured  by  a  money  standard;  and  the 
damages  assessed  depend  on  the  circumstances,  showing  the 
degree  of  moral  turpitude  or  atrocity  of  the  defendant's  con- 
duct, and  may  properly  be  termed  exemplary  or  vindictive  rather 
than  compensatory. 

In  actions  of  trespass,  where  the  injury  has  been  wanton  and 
malicious,  or  gross  and  outrageous,  courts  permit  juries  to  add 
to  the  measured  compensation  of  the  plaintiff  which  he  would 
have  been  entitled  to  recover,  had  the  injury  been  inflicted 
without  design  or  intention,  something  farther  by  way  of  pimish- 
ment  or  example,  which  has  sometimes  been  called  "smart 
money."  This  has  been  always  left  to  the  discretion  of  the  jury, 
as  the  degree  of  punishment  to  be  thus  inflicted  must  depend 
on  the  peculiar  circumstances  of  each  case.  It  must  be  evident, 
also,  that  as  it  depends  upon  the  degree  of  malice,  wantonness, 
oppression,  or  outrage  of  the  defendant's  conduct,  the  punish- 
ment of  his  delinquency  cannot  be  measured  by  the  expenses  of 
the  plaintiff  in  prosecuting  his  suit.  It  is  true  that  damages, 
assessed  by  way  of  example,  may  thus  indirectly  compensate  the 
plaintiff  for  money  expended  in  counsel  fees ;  but  the  amount 
of  these  fees  cannot  be  taken  as  the  measure  of  punishment  or 
a  necessary  element  in  its  infliction. 

This  doctrine  about  the  right  of  the  jury  to  include  in  their 
verdict,  in  certain  cases,  a  sum  sufficient  to  indemnify  the  plain- 
tiff for  counsel  fees  and  other  real  or  supposed  expenses  over 
and  above  taxed  costs,  seems  to  have  been  borrowed  from  the  civil 
law  and  the  practice  of  the  courts  of  admiralty.  At  first,  by  the 
common  law.  no  costs  were  awarded  to  either  party,  eo  nomine. 
If  the  plaintiff  failed  to  recover  he  was  amerced  pro  falso  clamore. 
If  he  recovered  judgment,  the  defendant  was  in  misericordia 
for  his  unjust  detention  of  the  plaintiff's  debt,  and  was  not 


650  EXPENSES  OF  LITIGATION. 

therefore  punished  with  the  expensa  lilts  under  that  title.  But 
this  being  considered  ii  great  hardship,  the  statute  of  Gloucester 
(G  Edw.  1,  c.  1)  was  passed,  which  gave  costs  in  all  eases  when 
the  plaintiff  recovered  damages.  Tliis  was  tlie  origin  of  costs 
de  incnniinlo;  for  when  the  tlamages  were  found  by  the  jury, 
the  judges  held  themselves  obliged  to  tax  the  moderate  fees  of 
coimsel  and  attorneys  that  attended  the  Cciuse.  See  Bac.  Abr. 
tit.  Costs. 

Under  the  provisions  of  this  statute  every  court  ol  connnon 
law  has  an  established  system  of  costs,  which  are  allowed  to 
the  successful  party  by  way  of  amends  for  his  expense  and 
trouble  in  prosecuting  his  suit.  It  is  true,  no  doubt,  and  is  es- 
pecially so  in  this  country  (where  the  legislatures  of  the  dif- 
ferent States  have  so  much  reduced  attorneys'  fee-bills,  and 
refused  to  allow  the  honorarium  paid  to  counsel  to  be  exacted 
from  the  losing  party),  that  the  legal  taxed  costs  are  far  below 
the  real  expenses  incurred  by  the  litigant ;  yet  it  is  all  the  law 
allows  as  expensa  litis.  If  the  jury  may,  ' ' if  they  see  fit, ' '  allow 
coimsel  fees  and  expenses  as  a  part  of  the  actual  damages  in- 
curred by  the  plaintiff,  and  then  the  court  add  legal  costs  de  in- 
cremento,  the  defendants  may  be  truly  said  to  be  in  misericordia, 
being  at  the  mercy  both  of  court  and  jury.  Neither  the  common 
law,  nor  the  statute  law  of  any  State,  so  far  as  we  are  informed, 
has  invested  the  jury  with  this  power  or  privilege.  It  has  been 
sometimes  exercised  by  the  permission  of  courts,  but  its  results 
have  not  been  such  as  to  recommend  it  for  general  adoption 
either  by  courts  or  legislatures. 

The  only  instance  w^here  this  power  of  increasing  the  ' '  actual 
damages ' '  is  given  by  statute  is  in  the  patent  laws  of  the  United 
States.  But  there  it  is  given  to  the  court  and  not  to  the  jury. 
The  jury  must  find  the  "actual  damages"  incurred  by  the 
plaintiff  at  the  time  his  suit  was  brought ;  and  if.  in  the  opinion 
of  the  court,  the  defendant  has  not  acted  in  good  faith,  or  has 
been  stubbornly  litigious,  or  has  caused  unnecessary  expense 
and  trouble  to  the  plaintiff,  the  court  may  increase  the  amount 
of  the  verdict,  to  the  extent  of  trebling  it.  But  this  penalty 
cannot,  and  ought  not,  to  be  twice  inflicted;  first,  at  the  dis- 
cretion of  the  jury,  and  again  at  the  discretion  of  the  court. 
The  expenses  of  the  defendant  over  and  above  taxed  costs  are 
usually  as  great  as  those  of  plaintiff;  and  yet  neither  court  nor 
jury  can  compensate  him,  if  the  verdict  and  judtrment  be  in  his 


EXPENSES  OP  LITIGATION.  651 

favor,  or  amerce  the  plaintift"  pro  falso  clamore  beyond  tax  costs. 
Where  such  a  rule  of  law  exists  allowing  the  jury  to  find  costs 
de  incremento  in  the  shape  of  counsel  fees,  or  that  equally  in- 
definite and  unknown  quantity  denominated  (in  the  plaintiff's 
prayer  for  instruction)  "&c.,"  they  should  be  permitted  to  do 
the  same  for  the  defendant  w^here  he  succeeds  in  his  defense, 
otherwise  the  parties  are  not  suffered  to  contend  in  an  equal 
field.  Besides,  in  actions  of  debt,  covenant,  and  assumpsit,  where 
the  plaintiff*  always  recovers  his  actual  damages,  he  can  recover 
but  legal  costs  as  compensation  for  his  expenditure  in  the  suit, 
and  as  punishment  of  defendant  for  his  unjust  detention  of  the 
debt;  and  it  is  a  moral  offence  of  no  higher  order,  to  refuse 
to  pay  the  price  of  a  patent  or  the  damages  for  a  trespass,  which 
is  not  wilful  or  malicious,  than  to  refuse  the  payment  of  a  just 
debt.  There  is  no  reason,  therefore,  why  the  law  should  give 
the  plaintiff  such  an  advantage  over  the  defendant  in  one  case, 
and  refuse  it  in  the  other.  See  Barnard  v.  Poor,  21  Pickering, 
382 ;  and  Lincoln  v.  the  Saratoga  Railroad,  29  Wendell,  435. 

We  are  of  the  opinion,  therefore,  that  the  instruction  given  by 
the  court  in  answer  to  the  prayer  of  the  plaintiff,  was  correct. 

The  instruction  to  the  jury,  also,  was  clearly  proper  as  re- 
spected the  measure  of  damages,  and  that  the  jury  had  nothing 
to  do  with  the  question  whether  their  verdict  would  carry  costs. 

The  judgment  is  therefore  affirmed. 


AGIUS  V.  GREAT  WESTERN  COLLIERY  COMPANY. 

L.  R.  1899.     1  Q.  B.  413. 

Action  for  breach  of  contract  by  defendants  for  supply  of 
coal  to  plaintiff.  Plaintiff  had  contracted  with  one  Nye  to  sup- 
ply bunker  coal  for  his,  Nye's  steamers;  and,  not  having  such 
coal  owing  to  defendant's  breach,  he  was  sued  by  Nye  and  sub- 
jected to  costs  and  extra  costs.  Plaintiff  then  brought  this  ac- 
tion, claiming  as  damages  the  money  paid  as  costs,  which  he  duly 
secured  and  defendant  appeals. 

Earl  op  Halsbury,  L.  C.  I  am  of  opinion  that  this  appeal 
must  be  dismissed.  Only  one  question  of  any  substance  remains 
to  be  decided  in  this  case.  With  regard  to  the  question  whether 
there  was  a  breach  by  the  defendants  of  their  contract,  it  ap- 


652  EXPENSES  OF  LITIGATION. 

pears  to  me  that  there  was  ample  evidence  of  such  a  breach.  It 
is  really  unnecessary  to  retry  that  question,  which  was  very 
iaintly  contested  before  the  learned  judge  at  the  trial.  It  being, 
therefore,  sufficiently  proved,  and  practically  uncontested,  that 
there  was  a  breach  of  contract  by  the  defendants,  the  question 
arises,  what  amount  of  damage  is  recoverable  for  that  breach  of 
contract?  Upon  the  hypothesis  that  there  was  a  breach  of  con- 
tract, it  was  ultimately  admitted,  and  it  really  could  not  upon 
the  evidence  be  contested,  that  the  plaintiff  is  entitled  to  re- 
cover as  damages  the  sum  which  he  had  to  pay  to  the  shipowners 
in  their  action  against  him;  and  in  substance,  therefore,  the 
only  question  which  we  now  have  to  determine  is  whether  or  not 
the  costs  incurred  by  the  plaintiff  in  defending  that  action  can 
be  recovered  by  him  from  the  defendants  in  the  present  action. 
This  question  certainly  arises  under  circumstances  which  would 
render  it  a  very  unreasonable  state  of  the  law,  if  the  plaintiff 
could  not  recover  those  costs.  The  result  of  the  course  taken 
by  the  plaintiff  has  been  that,  with  regard  to  a  very  serious  and 
important  portion  of  the  claim  made  by  the  shipowners,  he 
succeeded  in  that  action,  and  has  in  consequence  recovered  from 
the  plaintiffs  therein  some  costs  for  which  credit  has  to  be  given 
to  the  defendants  in  the  present  action;  and  the  plaintiff  con- 
tends that  what  he  reasonably  did  in  his  own  interest  in  defend- 
ing the  action  has  inured  to  the  benefit  of  the  present  defend- 
ants, for  the  amount  of  the  damages,  which  admittedly  would 
be  recoverable  over  against  them,  was  thereby  reduced  from  the 
150  £.,  the  amount  which  was  claimed,  to  20  £.  It  would  be  a 
strange  thing,  in  my  opinion,  if  the  success  of  the  defense,  by 
which  the  damages  were  so  reduced,  prevented  the  plaintiff's 
recovering  from  the  defendants  the  costs  which  he  has  incurred 
therein.  I  am  very  glad  to  say  that  in  my  view  the  law  is  not 
as  contended  for  by  the  defendants.  It  was  laid  down  in  1854 
in  the  case  of  Hadley  v.  Baxendale,  9  Ex.  341,  and  has  ever 
since  been  accepted  as  the  guiding  rule  of  law  as  to  the  measure 
of  damages  in  an  action  of  contract,  that,  when  two  parties  have 
made  a  contract  which  one  of  them  has  broken,  then,  if  the  dam- 
ages claimed  in  respect  of  the  breach  of  contract  are  such  as 
may  be  fairly  and  reasonably  considered  as  arising  naturally, 
i.  e.,  according  to  the  usual  course  of  things,  from  the  breach  of 
contract  itself  or  such  as  may  reasonably  be  supposed  to  have 
been  in  the  contemplation  of  the  parties,  at  the  time  when  they 


EXPENSES  OF  LITIGATION.  653 

made  the  contract,  as  the  probable  result  of  a  breach  of  it,  they 
are  recoverable.  Applying  that  test  to  the  present  case,  is  what 
happened  here  a  consequence  that  might  reasonably  be  expected 
to  follow  from  the  defendants'  breach  of  contract?  Both  parties 
carried  on  business  at  Cardiff.  The  defendants  knew  what  the 
plaintiff's  business  was,  and  that  the  coals  were  required  for 
the  purpose  of  supplying  coals  to  steamers  lying  in  the  tidal 
harbor  at  Cardiff.  Under  the  circumstances  it  is  idle  to  suggest 
that  it  was  not  in  the  contemplation  of  the  parties  that  a  breach 
of  the  contract  to  supply  coals  would  probably  lead  to  such  a 
claim  against  the  plaintiff  as  was  set  up  by  the  shipowners  in 
this  case.  It  would,  under  the  circumstances,  almost  necessarily 
follow  from  a  breach  of  the  contract  that  such  a  claim  would  be 
made.  It  is  also  obvious  that,  if  such  a  claim  were  made,  it 
would  be  reasonable  for  the  plaintiff,  if,  as  was  the  case,  he  could 
not  show  that  he  was  not  liable,  to  take  such  steps  as  might  be 
necessary  to  ensure  that,  at  all  events,  the  damages  recovered 
should  not  be  extravagant.  It  would  be  contrary  to  the  ordinary 
principles  of  conduct  in  business  that  he  should  not  endeavor 
to  do  this.  This  is  exactly  what  the  plaintiff  did  in  the  present 
case.  The  question  is  whether  upon  the  principle  laid  down  in 
Hadley  v.  Baxendale,  supra,  the  plaintiff  has  not  a  right  to  re- 
cover these  costs  as  reasonably  incidental  to  the  breach  of  con- 
tract.    *     *     * 

I  think  that  the  judgment  must  be  affirmed.  *  *  * 
Chitty,  L.  J.  I  am  of  the  same  opinion.  I  think  the  case 
falls  within  the  rule  laid  do^^Ti  in  Hadley  v.  Baxendale,  supra, 
namely,  that  damages  are  recoverable  in  an  action  for  breach  of 
contract  which  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  the  parties  when  they  made  the  contract  as 
the  probable  consequences  of  a  breach  of  it.  The  coal  was  sold  in 
this  case  for  a  particular  purpose  as  is  sho^vn  upon  the  face  of 
the  contract  itself.  The  plaintiff  carried  on  business  in  the  same 
town  as  the  defendants,  and  they  knew  the  nature  of  his  busi- 
ness; and  it  appears  from  the  terms  of  the  letters  which  con- 
stitute the  contract  that  they  knew  that  the  coal  was  wanted  for 
steamers  of  which  the  steamer  delayed  was  one.  It  is  not  nec- 
essary for  me  to  repeat  the  facts  at  length,  but  I  am  satisfied 
that  they  were  such  as  to  bring  the  case  within  the  doctrine  of 
Hadley  v.  Baxendale,  supra,  so  far  as  the  damages  recovered  by 
the  shipowners  from  the  plaintiff  are  concerned.     Then  comes 


6o-i:  EXPENSES  OF  LITIGATION. 

the  question  as  to  the  costs  of  the  defense  of  the  action  brought 
by  the  shipowners  against  the  plaintitt".  Channell,  J.,  has  held 
that  the  course  taken  by  the  plaintitf  in  defending  that  action 
was  reasonable.  It  was  taken  really  not  only  in  his  own  in- 
terest, but  in  that  of  the  defendants,  for  the  result  of  it  was  to 
reduce  the  damages  from  150  £.,  which  was  the  amount  claimed, 
to  20  £.,  and,  by  taking  the  step  of  paying  20  £.,  into  court,  the 
plaintiff  got  from  the  shipowners  the  costs  as  between  party 
and  part}'  of  the  proceedings  subsequent  to  the  payment  into 
court.  So  the  defense  was  one  which  in  the  result  was  for  the 
benefit  of  the  defendants.  With  regard  to  the  authorities  I 
have  nothing  to  add  except  to  say  that  I  think  that  Hammond  & 
Co.  V,  Bussey,  20  Q.  B.  D.  79,  was  rightly  decided,  and  that,  if 
there  is  any  conflict  between  it  and  Baxendale  v.  London, 
Chatham  and  Dover  Ry.  Co.,  L.  R.  10  Ex.  35,  I  think  it  ought 
to  be  followed  rather  than  that  case. 

"With  regard  to  the  scale  upon  which  Channell,  J.  has  allowed 
the  costs,  I  think  that  he  made  the  right  order  in  confining  them 
to  such  costs  as  were  reasonably  incurred  by  the  plaintiff, 
namely,  first  those  which  he  had  to  pay  to  the  plaintiffs,  in  the 
action  against  him  in  respect  of  the  proceedings  prior  to  the 
payment  into  court,  and  secondly  his  own  costs  subsequent  to 
that  date,  not  meaning  thereby  any  extravagant  costs  which  he 
might  choose  to  incur,  but  only  reasonable  costs  upon  the  foot- 
ing that  the  costs  were  to  be  paid  by  a  third  party. 

Appeal  dismissed. 

As  a  seneral  rule  when  a  party  is  called  upon  to  defend  a  suit, 
founded  upon  a  wrong,  for  which  he  is  held  responsible  in  law  without 
misfeasance  on  his  part  but  because  of  the  wrongful  act  of  another, 
against  whom  he  has  a  remedy  over,  counsel  fees  are  the  natural  and 
reasonably  necessary  consequence  of  the  wrongful  act  of  the  other, 
if  he  has  notified  the  other  to  appear  and  defend  the  suit.  Westfield 
V.  Mayo,  122  Mass.  100. 

Counsel  fees  were  allowed  in  an  action  for  a  breach  of  contract 
not  to  engage  in  the  laundry  business.  My  Laundry  Co.  v.  Schmeling, 
129  Wis.  597. 


XV.     EVIDENCE. 

LOUISVILLE  N.  A.  &  C.  R.  R.  v.  SPARKS. 

Indiana,  1895.     12  Ind.  410. 

Reinhard,  J.  The  appellees  are  husband  and  wife,  and  this 
action  was  brought  by  thein  against  the  appellant  for  damages 
to  the  real  estate  of  the  wife  on  account  of  the  alleged  negligence 
of  the  appellant  in  reconstructing  a  culvert  near  its  railroad 
and  the  said  real  estate,  causing  the  water  to  back,  overflow, 
and  stand  upon  the  same,  and  injuring  it  in  various  ways,  and 
injuring  the  crops  thereon  and  the  health  of  the  appellee  Fannie 
A.  Sparks.  In  the  court  below  the  appellees  recovered.  At  the 
trial,  appellees'  counsel  propounded  to  John  P.  Sparks,  the  hus- 
band and  witness  of  Fannie  A.  Sparks,  the  following  question: 
'•You  may  state  to  the  jury  what,  in  your  judgment,  is  the  de- 
preciation in  value  of  the  property,  and  injury  to  the  crops,  on 
account  of  these  overflows  that  you  have  detailed  occurring  since 
the  sewer  pipe  was  substituted  for  the  culvert."  To  this  ques- 
tion the  appellant's  counsel  objected,  because  it  sought  to  elicit 
from  the  witness  a  conclusion,  and  not  a  fact.  The  objection 
was  overruled,  and  the  appellant  excepted.  The  witness  then 
answered,  "A  thousand  dollars,"  which  was  all  the  evidence 
given  on  the  subject  of  X\j'  amount  of  damages.  The  question 
involved  two  elements  of  damages,  viz.,  damages  to  tiie  real 
estate,  and  damages  to  the  growing  crops.  Each  of  these  formed 
a  proper  subject  of  inquiry,  wliich  should  have  been  pursued 
separately,  although  the  object  was  not  based  upon  the  ground 
of  the  duplicity  of  the  question. 

Before  determining  the  question  before  us,  it  is  proper  to  as- 
certain what  is  the  measure  of  damages  for  the  injury  to  the 
land  and  to  the  growing  crops.  Injuries  of  the  character  here 
sued  for  are  somewhat  analogous  to  those  involved  in  actions  for 
damages  for  the  wron-iful  appropriation  of  land  for  municipal 
corporations  or  railroad  companies.  In  all  such  cases,  where  the 
injury  is  a  permanent  one,  the  measure  of  damages  to  the  land 
is  the  diminished  market  value  of  the  same  by  reason  of  the  in- 

6n5 


65t>  EVIDENCE. 

jury,  which  is  ascertained  by  proof  of  the  market  value  before 
the  injury  and  the  market  value  after  the  injury,  leaving  it 
to  the  jury  or  court  trying  tlie  cause  to  calculate  the  ditfereuce. 
If,  liowever,  the  injury  is  not  a  permanent  one,  and  the  action 
does  not  recognize  the  right  of  the  defendant  to  continue  the  ob- 
struction, tlien  it  seems  that  damages  can  only  be  recovered  up 
to  the  time  of  the  commencement  of  the  action,  and  that  succes- 
sive actions  may  be  brought  for  successive  injuries  resulting 
from  tlie  same,  and  the  measure  of  damages  is  found  in  the  de- 
preciation, not  of  the  value  of  the  land,  but  of  the  value  of  the 
use  of  the  same,  which  is  ascertained  by  proof  of  such  value  be- 
fore and  after  the  injury.  1  Suth.  Dam.  §  116;  Sedg.  Dam.  (8th 
Ed.)  §  942,  and  cases  there  cited;  City  of  Ft.  Wayne  v.  Hamil- 
ton, 132  Ind.  487 ;  Railway  Co.  v.  Eberle,  110  Ind.  542,  551. 

"Where  the  destruction  or  injury  of  the  crops  enters  into  the 
damages  as  an  element,  such  damages  are  measured  by  proof  of 
the  value  of  the  crops  with  and  without  the  injury,  leaving  the 
court  or  jury  to  determine  the  difference  as  in  the  other  case. 
We  recognize  the  fact,  however,  that  an  injury  resulting  from 
such  an  act  of  negligence  as  the  one  here  complained  of  may  be 
in  part  permanent  and  in  part  temporary  or  transient.  Thus, 
the  land  and  buildings  may  have  been  permanently  injured  by 
washouts  and  gullies,  so  as  to  diminish  the  value  of  the  entire 
tract  or  parcel,  while,  in  addition,  there  may  have  been  tempo- 
rary injuries.  In  the  present  case  the  injury  to  the  soil  or  real 
estate  seems  to  have  been  of  a  permanent  character,  the  other 
injuries  complained  of  being  injuries  to  the  crops  growing  on 
the  place,  and  injury  to  the  health  of  the  appellee  Fannie  A. 
Sparks.  Hence  the  measure  of  damages  for  the  injury  to  the 
real  estate  is  the  difference  in  its  value  by  reason  of  the  injuries, 
which  is  ascertained  by  proof  of  the  value  of  the  land  before 
and  after  the  same.    Railroad  Co.  v.  Smith,  6  Ind.  App.  262. 

Whatever  damage  was  occasioned  by  injury  to  the  crops 
should  be  proved  by  showing  the  difference  in  the  value  of  such 
crops  with  and  without  the  injury.  Values,  as  counsel  correctly 
contend,  may  be  proved  by  the  opinions  of  witnesses,  for  these 
are.  after  all,  but  estimates  based  upon  the  fact  that  other  prop- 
erty of  a  similar  character  in  the  neighborhood  has  been  or  could 
be  sold  for  similar  prices.  Such  opinions  may  also  be  based 
upon  the  knowledge  of  the  witness  of  the  persons  desiring  to 
purchase  the  property  and  the  pri^^e  ihat  they  pre  offerer]  for  it. 


EVIDENCE.  657 

There  would  have  been,  consequently,  no  valid  objection  to  ask- 
ing the  witness  his  opinion  as  to  the  value  of  the  property,  or 
the  difference  in  value  before  and  after  the  injury,  and  possibly 
there  may  have  been  no  error  in  asking  him  his  opinion  as  to  the 
depreciation;  but  that  portion  of  the  question  which  required 
the  witness  to  give  his  judgment  or  estimate  of  the  "injuries" 
to  the  crops  was  decidedly  objectionable,  for  the  reason  that  it 
w^as  an  attempt  to  substitute  the  conclusion  or  opinion  of  the 
witness  for  that  of  the  jury  on  a  question  directly  involved  in  the 
issues.  What  the  injuries  or  damages,  or  any  portion  of  them, 
are  or  were  in  this  case,  was  for  the  jury,  and  not  for  the  wit- 
ness to  decide.  If  it  were  left  to  the  witness  to  pass 
judgment  on  what  the  amount  of  damages  or  injury  is 
or  should  be,  he  might  base  his  estimate  upon  things  which 
do  not  lawfully  enter  into  the  consideration  of  the  ques- 
tion as  elements  of  damages.  For  this  and  other  reasons,  the 
witness  should  not  be  allowed  to  give  his  own  conclusions  or 
estimates  of  the  damages.  True,  the  damages  may  be  proved  by 
opinion  evidence.  Not,  however,  by  opinions  of  what  the  injury 
amounts  to  in  dollars  and  cents,  but  by  opinions  of  the  value  of 
the  crops  before  and  after  the  injury,  which  is  quite  a  different 
thing. 

Judgment  reversed. 


SHARP  V.  UNITED  STATES. 

U.  S.  Supreme  Court,  1903.     191  U.  S.  341. 

The  plaintiff  in  error  has  sued  out  this  writ  for  the  purpose 
of  reviewing  a  judgment  of  the  United  States  circuit  court  of 
appeals  for  the  third  circuit,  which  affirmed  a  judgment  of  the 
district  court  of  New  Jersey,  awarding  damages  to  plaintiff 
in  error  for  the  taking  of  certain  property  of  his  on  the  Delaware 
river,  near  Fort  Mott,  in  that  state.  The  award  of  the  jury  was, 
in  the  opinion  of  the  plaintiff  in  error,  entirely  inadequate  as 
just  compensation  to  him  as  the  owner  of  the  land  for  its  taking 
by  the  government. 

The  jury  found  and  assessed  the  value  of  the  lands  and  the 
damages  sustained  at  the  sum  of  $12,000,  to  be  paid  the  plaintiff 
in  error  by  the  United  States.  Judgment  having  been  duly  en- 
tered upon  the  award  of  the  jury,  an  appeal  was  taken  to  the 

42 


658  EVIDENCE. 

circuit  court  of  appeals,  where  the  judgment  was  affirmed,  and 
the  case  is  now  before  us  on  writ  of  error  sued  out  by  the  owner 
of  the  hmd. 

Mr.  Justice  Peckham,  after  making  the  foregoing  statement 
of  facts,  delivered  the  opinion  of  the  court:     *     *     * 

The  questions  to  be  reviewed  by  this  court  arise  upon  ex- 
ception appearing  in  the  record  taken  upon  the  decisions  of 
the  court  in  relation  to  the  admissibility  of  evidence,  and  also 
to  the  charge  of  the  court  as  to  the  proper  items  to  be  considered 
by  the  jury  in  arriving  at  their  verdict. 

The  errors  assigned  and  upon  which  the  argument  was  had 
in  the  circuit  court  of  appeals  were  twelve  in  number.  They 
are  in  substance  the  same  here.  The  first  seven  refer  to  the  re- 
jection of  evidence  in  regard  to  offers  to  purchase  the  lands  from 
the  plaintiff  in  error.  It  was  held  by  the  trial  court,  in  response 
to  the  proposal  to  give  such  evidence,  that  the  plaintiff  in  error 
could  not  testify  to  different  offers  he  had  received  to  purchase 
the  property  for  hotel,  residential,  or  amusement  purposes,  or 
for  a  ferry,  or  a  railroad  terminal,  or  to  lease  the  property  for 
hotel  purposes. 

Upon  principle,  we  think  the  trial  court  was  right  in  rejecting 
the  evidence.    It  is,  at  most,  a  species  of  indirect  evidence  of  the 
opinion  of  the  person  making  such  offer  as  to  the  value  of  the 
land.    He  may  have  so  slight  a  knowledge  on  the  subject  as  to 
render  his  opinion  of  no  value,  and  inadmissible  for  that  reason. 
He  may  have  wanted  the  land  for  some  particular  purpose  dis- 
connected from  its  value.    Pure  speculation  may  have  induced 
it,  a  willingness  to  take  chances  that  some  new  use  of  the  land 
might,  in  the  end,  prove  profitable.    There  is  no  opportunity  to 
cross-examine  the  person  making  the  offer,  to  show  these  various 
facts.    Again,  it  is  of  a  nature  entirely  too  uncertain,  shadowy, 
and  speculative  to  form  any  solid  foundation  for  determining 
the  value  of  the  land  which  is  sought  to  be  taken  in  condemna- 
tion proceedings.    If  the  offer  were  admissible,  not  only  is  it  al- 
most impossible  to  prove   (if  it  exist)   the  lack  of  good  faith 
in  the  person  making  the  oft'er,  but  the  circumstances  of  the 
parties  at  the  time  the  offer  was  made  as  bearing  upon  the  value 
of  such  offer  may  be  very  difficult,  if  not  almost  impossible  to 
show.    To  be  of  the  slightest  value  as  evidence  in  any  court,  an 
offer  must,  of  course,  be  an  honest  offer,  made  by  an  individual 
capable   of  forming   a    fair   and    intelligent    judgment,    really 


EVIDENCE.  659 

desirous  of  purchasing,  entirely  able  to  do  so,  and  to  give  the 
amount  of  nione}'  mentioned  in  the  offer,  for  otherwise  the  offer 
would  be  but  a  vain  thing.  Whether  the  owner  himself,  while 
declining  the  offer,  really  believed  in  the  good  faith  of  the  party 
making  it,  and  in  his  ability  and  desire  to  pay  the  amount  of- 
fered, if  such  offer  should  be  accepted,  or  whether  the  offer  was 
regarded  as  a  mere  idle  remark,  not  intended  for  acceptance, 
would  also  be  material  upon  the  question  of  the  bona  fides  of 
the  refusal.  Oral  and  not  binding  offers  are  so  easily  made  and 
refused  in  a  mere  passing  conversation,  and  under  circumstances 
involving  no  responsibility  on  either  side,  as  to  cast  no  light  upon 
the  question  of  value.  It  is  frequently  very  difficult  to  show 
precisely  the  situation  under  which  these  offers  were  made.  In 
our  judgment  they  do  not  tend  to  show  value,  and  they  are  un- 
satisfactory, easy  of  fabrication,  and  even  dangerous  in  their 
character  as  evidence  upon  this  subject.  Especially  is  this  the 
case  when  the  offers  are  proved  only  by  the  party  to  whom  they 
are  alleged  to  have  been  made,  and  not  by  the  party  making 
them.  There  is  no  chance  to  cross-examine  as  to  the  circum- 
stances of  the  party  making  the  offer  in  regard  to  good  faith, 
etc.  Evidence  of  this  character  is  entirely  different  from  evi- 
dence as  to  the  price  offered  and  accepted  or  rejected  for  ar- 
ticles which  have  a  known  and  ready  sale  in  the  market.  The 
price  at  the  stock  exchange  of  shares  of  stock  in  coroporations 
which  are  there  offered  for  sale  or  dealt  in  is  some  evidence  of 
the  value  of  such  shares.  So  evidence  of  prices  current  among 
dealers  in  those  commodities  which  are  the  subject  of  frequent 
sales  by  them  would  also  be  proper  to  show  value.  This  evi- 
dence is  unlike  that  of  offers  to  purchase  real  estate,  and  affords 
no  ground  for  the  admissibility  of  the  latter. 

A  reference  to  the  authorities  shows  them  to  be  almost 
unanimous  against  receiving  evidence  of  this  kind.  Counsel  have 
cited  many  cases  on  this  subject  and  they  are  contained  in  the 
margin.  Fowler  v.  Middlesex  County,  6  Allen,  92,  96 ;  Wood  v. 
Firemen's  F.  Ins.  Co.  126  Mass.  316,  319;  Thompson  v.  Boston, 
148  Mass.  387;  Anthony  v.  New  York,  P.  &  B.  R.  Co.  162  Mass. 
60,  Cochrane  v.  Com.  175  Mass.  299;  Hine  v.  Manhattan  R.  Co. 
132  N.  Y.  477,;  Keller  v.  Paine,  34  Hun,  167;  Lawrence  v. 
Metropolitan  Elev.  R.  Co.  14  Daly,  502;  Young  v.  Ttwood,  5 
Hun,  234;  Parke  v.  Seattle,  8  Wash.  78;  Santa  Ana  v.  Harlin, 
99  Cal.  538;  St.  Joseph  &  D.  C.  R.  Co.  v.   Orr,  8  Kan.  419; 


660  EVIDENCE. 

Minnesota  Belt  Line  R.  &  Transfer  Co.  v.  Gluck,  45  Minn.  463 ; 
Louisville,  N.  O.  &  T.  R.  Co.  v.  Ryan,  04  Miss.  399.  Most  of  them 
are  elearly  against  the  admissibility  of  the  evidence,  while  some, 
which  at  tirst  sight  might  be  regarded  as  exceptional,  will  be 
found  upon  closer  examination  to  recognize  the  general  rule  as 
already  stated. 

The  next  four  assignments  of  error  relate  to  the  proper  items 
of  damage  to  be  included  in  the  award. 

The  owner  offered  to  prove  the  probable  use  the  government 
would  make  of  the  land  for  military  purposes  for  which  it  was 
taken;  also,  that  the  use  of  the  land  for  such  military  purposes 
would  damage  and  depreciate  the  remaining  and  adjoining 
land ;  also,  that  if  the  land  to  be  taken  was  used  by  the  govern- 
ment for  military  purposes  it  would  endanger  the  adjoining 
land  of  the  owner  for  a  long  distance  and  make  the  removal  of 
his  buildings  necessary.  These  offers  were  rejected,  and  the 
court  held  that  the  jury  should  not  take  into  account  prospective 
damages  to  the  remaining  and  adjoining  land  of  the  owner,  aris- 
ing from  the  future  use  of  the  land  sought  to  be  taken  from  him 
for  military  purposes,  although  at  the  same  time  the  court 
charged,  if  the  evidence  showed  that  by  reason  of  the  severance 
of  the  farms  those  which  remained  were  made  so  small  that  it 
would  be  unprofitable  to  work  them,  whatever  damage  resulted 
therefrom  should  be  given  the  owner.    *    *    * 

We  are  of  opinion  that  the  court  was  not  bound  to  receive  evi- 
dence upon  any  subject  which  it  held  to  be  not  a  proper  item  to 
make  up  the  award  to  the  owner.     *     *     * 

The  important  question  is  as  to  the  admissibility  of  evidence 
of  damages  to  the  remaining  lands  of  the  owner  which  would 
probably  flow  from  any  particular  and  probable  use  by  the  gov- 
ernment of  the  land  to  be  taken.  It  is  said  by  the  plaintiff  in 
error  that  just  compensation  consists  not  only  in  an  award  of 
the  value  of  the  lands  which  are  taken,  but  also  of  any  damage 
that  may  result  to  the  portion  of  the  tract  which  remains,  on 
account  of  such  taking  and  on  account  of  the  uses  to  which  the 
land  taken  may,  or  probably  will,  be  put,  and  he  cites  many 
eases  to  show  the  correctness  of  the  rule  which  he  asserts.   *  *   * 

Upon  the  facts  which  we  have  detailed,  we  think  the  plaintiff 
in  error  was  not  entitled  to  recover  damages  to  the  land  not 


EVIDENCE.  G61 

taken  because   of  the  probable   use  to   which  the   government 
would  put  the  land  it  proposed  to  take.    *    *    * 

In  Currie  v.  Waverly  &  N.  Y.  Bay  R.  Co.  52  N.  J.  L.  392,  cited 
by  counsel  for  plaintiff  in  error,  for  the  proposition  that  where 
a  part  of  the  tract  is  taken  for  condemnation,  damages  to  the 
remaining  land  shall  be  given,  the  court  also  says:  "It  is  an 
established  rule  in  law,  in  proceedings  for  condemnation  of  land, 
that  the  just  compensation  which  the  land  owner  is  entitled  to 
receive  for  his  lands,  and  damages  thereto,  must  be  limited  to 
the  tract,  a  portion  of  which  is  actually  taken.  The  propriety 
of  this  rule  is  quite  apparent.  It  is  solely  by  virtue  of  his  own- 
ership of  the  tract  invaded  that  the  owner  is  entitled  to  inciden- 
tal damages.  His  ownership  of  other  lands  is  without  legal 
significance."  It  is  enough  to  say  that,  in  our  opinion,  the  two 
other  farms  or  tracts  of  land  owned  by  plaintiff  in  error  con- 
stituted such  separate  and  independent  parcels,  as  regards  the 
land  in  question,  that  they  cannot  properly  be  spoken  of  as  the 
residue  of  a  tract  of  land  from  which  the  land  in  question  was 
taken,     *     *     * 

Although  denying  the  right  to  recover  certain  alleged  dam- 
ages to  the  land  remaining,  the  court  was  not  illiberal  in  the 
rules  it  adopted  for  ascertaining  the  compensation  due  for  the 
taking  of  the  land.  It  permitted  the  jury  to  consider  not  only 
the  purposes  to  which  the  land  taken  had  been  put,  but  also,  as 
bearing  upon  its  value,  the  jury  was  directed  to  consider  evi- 
dence as  to  the  adaptability  of  the  land  for  other  than  merely 
agricultural  purposes;  that  while  no  merely  speculative  value 
was  to  be  placed  on  the  land,  this  possible  adaptabilitj''  was  to  be 
considered,  and  if,  in  the  judgment  of  the  jury,  it  was  probable 
that  the  improvements  which  had  been  spoken  of  in  the  testi- 
mony would,  within  some  reasonable  time,  be  made,  that  was  an 
element  M^hich  might  enter  into  their  calculation  in  forming 
their  estimate  of  the  value  of  the  land. 

Therefore  the  jury  was  permitted  to  take  into  consideration 
the  future  possible  building  of  a  railroad  in  the  neighborhood 
which  would  pass  within  a  mile  or  so  of  Fort  Mott,  although 
no  steps  had  yet  been  taken  to  build  it ;  still,  as  there  had  been 
some  talk  of  building  it,  and  the  railroad  might  thereafter  be 
built,  the  jury  were  instructed  that  if  they  thought  from  the 
evidence  it  would  be  built  within  a  reasonable  time,  and  that  if 
built  it  would  enhance  the  valu'^  of  the  property,  they  might 


662  EVIDENCE. 

take  that  fact  into  consideration  as  giving  the  then  present 
actual  value  beyond  that  of  an  ordinary  farm. 

The  same  instructions  were  given  in  relation  to  a  trolley 
road  which  it  was  supposed  might  be  built  to  rim  near  this 
land. 

The  jury  was  also  permitted  to  consider  the  adaptability  of 
the  land  for  a  hotel  or  cottage  sites,  and  in  addition,  as  already 
stated,  the  court  charged  that  if  the  evidence  showed  that  by 
reason  of  the  severance  of  these  farms  they  were  made  so  small 
that  it  w^ould  be  unprofitable  to  work  them,  the  jury  ought  to 
give  the  damages  arising  therefrom.    *    *    * 

Upon  a  consideration  of  the  whole  record,  we  think  there  was 
no  error  committed  upon  the  trial  of  the  case  before  the  jury, 
and  the  judgment  of  the  Circuit  Court  of  Appeals  for  the  third 
circuit,  affirming  the  judgment  of  the  District  Court  for  the  dis- 
trict of  New  Jersey,  is,  therefore,  affirmed. 


POEHLMANiN  v.  KERTZ. 

Illinois,  1903.     204  111.  418. 

Wilkin,  J.  This  is  an  action  for  breach  of  promise  of  mar- 
riage, begun  by  Barbara  Kertz,  the  appellee,  against  John  W. 
Poehlmann,  the  appellant,  in  the  superior  court  of  Cook  county. 
In  accordance  with  the  verdict  of  the  jury,  a  judgment  was  en- 
tered for  the  plaintiff  for  $2,500.  From  an  affirmance  of  that 
judgment  in  the  Appellate  Court  for  the  First  District,  the  ap- 
pellant prosecutes  this  further  appeal. 

The  appellant  was  a  florist  in  Chicago,  and  was  a  widower, 
with  two  small  children.  In  1894  he  became  acquainted  with 
Barbara  Kertz,  who  was  employed  at  his  brother's  home  as  a 
domestic.  Four  years  later  their  acquaintance  became  more  in- 
timate, and  they  talked  of  marriage,  and  she  testified  that  there 
was  a  positive  agreement  to  become  husband  and  wife.  She 
then  7iiade  a  visit  to  her  father's  home,  at  Port  Washington, 
Wis.,  and  while  there  received  from  appellant  several  letters, 
the  language  of  which  plainly  indicates  that  a  promise  of  mar- 
riage had  been  made.  Appellant  visited  her  there,  and  presented 
her  with  a  ring.  After  his  return  to  Chicago,  she  heard  nothing 
^^irther  from  him.     Some  time  thereafter  she  came  to  Chicago, 


EVIDENCE.  663 

and  called  to  ascertain  why  the  correspondence  had  ceased,  and 
was  then  informed  he  had  changed  his  mind;  he  giving  her  to 
understand  that  their  marriage  would  never  take  place,  but  as- 
signing no  reason  for  his  conduct. 

Upon  the  hearing,  after  plaintiif  had  made  her  proof,  show- 
ing the  facts  substantially  as  herein  set  forth,  the  defendant, 
while  testifying  that  no  marriage  contract  had  even  been  en- 
tered into  between  himself  and  the  complainant,  undertook  to 
justify  his  refusal  to  marry  her  upon  the  ground  that  he  learned 
she  was  a  woman  of  unchaste  character,  having  had  sexual  inter- 
course with  one  Weirich  who  appears  as  a  witness  for  the  de- 
fendant, and  testified  that  he  had  on  two  or  more  occasions  had 
illicit  intercourse  with  her.  She,  in  rebuttal,  denied  the  state- 
ment made  by  Weirich,  and  was  then  asked  by  her  counsel, 
Did  you  ever  have  sexual  intercourse  with  any  man  ? "  And  she 
answered,  "Mr.  Poehlmann."  Counsel  for  defendant  objected, 
and  asked  that  the  answer  be  stricken  out  on  the  ground  that 
the  declaration  contained  no  allegation  of  seduction.  The  court 
refused  to  strike  out  the  answer,  saying:  "If  you  had  objected 
to  the  question,  I  would  have  sustained  the  objection;  but,  hav- 
ing waited  until  the  answer  came,  it  is  too  late."  Counsel  for 
the  defendant  then,  upon  cross-examination,  drew  out  the  fact 
that  she  had  yielded  to  the  defendant  only  after  his  promise  of 
marriage. 

It  is  first  contended  that  the  court  erred  in  permitting  the 
testimony  as  to  seduction,  because  the  declaration  contained  no 
charge  of  that  kind.  Having  waited  too  long  before  objecting 
to  the  question,  as  well  as  pursuing  the  witness  with  other  ques- 
tions on  that  subject,  counsel  for  the  defendant  cannot  now,  as 
a  matter  of  practice,  complain  of  the  evidence.  But  aside  from 
this  consideration,  it  was  competent,  under  the  pleadings,  to 
prove  the  seduction,  if  it  occurred  in  consequence  of  the 
promise.  It  is  permitted,  in  such  a  case,  to  be  shown  in  ag- 
gravation of  the  damages.  Tubbs  v.  Van  Kleek,  12  111.  446; 
Fidler  v.  IMcKinley,  21  111.  308.  As  is  said  in  the  case  last  cited 
Cpage  313)  :  "In  a  case  of  a  breach  of  promise,  accompanied 
with  a  seduction,  the  injury  is  infinitely  greater  than  where 
there  is  only  a  breach  of  promise.  When  there  is  a  seduction 
there  is  a  total  loss  of  character,  and  all  hopes  of  future  hap- 
piness and  usefulness  are  blighted,  and  certain  degradation  and 
future  misery,  if  not  crime,  are  its  consequences.    And  when  thi;. 


664  EVIDENCE. 

is  produced  by  a  breach  of  promise,  and  the  fraud  perpetrated 
upon  the  woman  by  the  man  entering  into  the  engagement  only 
to  accomplish  her  seduction,  the  injury  resulting  therefrom  is 
the  immediate  result  and  consequence  of  the  breach  of  promise. 
If  he  were  in  good  faith  to  perform  his  engagement  and  keep 
his  promise,  such  consequences  would  not  result;  but,  when  he 
fails  to  do  so,  every  consideration  of  justice  requires  him  to  re- 
pair the  injury,  as  far  as  it  may  be  done,  by  adequate  dam- 
ages." Counsel  argues  that  seduction  is  not  the  natural  result  of 
a  promise  of  marriage.  Certainly  not ;  but,  when  seduction  fol- 
loAvs  in  consequence  of  the  promise  degradation,  loss  of  character 
and  happiness  are  the  direct  result  of  a  breach  of  that  promise. 
In  other  words,  the  injury  results  from  the  breach,  not  the  making 
of  the  contract.  While  there  is  a  conflict  of  authority  on  the  ques- 
tion as  to  whether  evidence  of  seduction  is  admissible  without  an 
allegation  in  the  declaration,  this  court  is  fully  committed  to  the 
rule  here  announced.  The  foregoing  decisions  of  Tubbs  v. 
Van  Kleek  and  Fidler  v.  McKinley,  supra,  were  referred  to  with 
approval  in  Judy  v.  Sterrett,  153  111.  94.  *  *  * 
The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


BRIGGS  V.  N.  Y.  C.  &  H.  R.  R.  R.  Co. 

New  York,  1903.     177  N.  Y.  59. 

O'Brien,  J.  On  February  2,  1902,  the  plaintiff  was  injured 
in  a  collision  on  the  defendant's  belt  line  in  Buffalo.  It  was  a 
cold,  stormy  night,  and  a  great  deal  of  snow  had  fallen  and 
drifted.  Objects  could  not  be  seen  very  far  through  the  snow, 
and  it  continued  to  storm  after  the  plaintiff  left  the  train.  The 
ear  in  which  the  plaintiff  was  seated  had  the  seats  arranged  so 
that  for  a  third  of  the  length  from  either  end  of  the  car  they 
were  continuous  along  each  side,  and  in  the  middle  third  of  the 
ear  the  seats  were  crosswise.  The  plaintiff  and  her  aunt  sat  in 
the  seats  crosswise  of  the  car,  and  after  the  train  had  stopped 
at  one  of  the  regular  stopping  places,  and  had  just  got  started 
forward,  an  engine  following  in  the  rear  collided  with  the  train 
by  running  into  the  rear  end  of  it.  As  soon  as  the  headlight  was 
seen  approaching,  the  plaintiff  and  her  aunt  got  up  out  of  their 


EVIDENCE.  665 

seats  and  went  forward  to  the  head  end  of  their  car.  The  plain- 
tiff stood  there,  without  supporting  herself,  until  the  collision  oc- 
curred, which  caused  her  to  sit  down  involuntarily  upon  one  of 
the  iron  arm  rests,  or  divisions,  between  the  individual  seats  along 
the  side  of  the  car.  The  collision  appears  to  have  been  a  slight 
one;  nothing  was  broken  about  the  car  except  the  glass  in  the 
front  door,  and  the  train  started  up  again  and  ran  on  to  the 
next  stop  in  the  usual  way.  The  plaintiff  and  her  aunt  having 
reached  their  destination,  got  out  and  walked  for  some  10  min- 
utes through  the  storm  and  snow  to  the  home  of  the  aunt.  It 
was  Sunday  evening,  and  plaintiff  stayed  there  that  night  and 
the  next  day  and  night,  and  on  Tuesday  went  home.  The 
plaintiff  then  went  with  her  mother  to  a  physician  at  his  office. 
The  testimony  tended  to  show  that  she  went  there  every  day  for 
a  week,  and  then  every  other  day  for  two  weeks,  and  then  less 
frequently.  It  was  claimed  that  the  tip  end  of  the  spine  was  in- 
jured, resulting  in  serious  consequences.  The  physician  stated 
that  when  he  first  examined  her  he  found  a  discoloration,  not 
very  much  discolored,  about  two  inches  above  the  tip  of  the  spine. 
He  did  not  remember  giving  any  local  treatment,  but  gave  her 
nerve  sedatives.  The  jury  rendered  a  verdict  for  the  plaintiff 
of  $6,000,  which  has  been  unanimously  affirmed. 

The  extent  of  the  injury  and  the  damages  were  sought  to  be 
established  by  the  plaintiff  largely  upon  the  testimony  of  medical 
experts.  These  experts  were  conducted  by  the  learned  coimsel 
for  the  plaintiff,  in  his  examination,  through  a  very  wide  field 
of  speculative  inquiry.  Much  of  this  testimony  appears  in  the 
record  without  exception,  though  it  was  constantly  objected  to 
by  defendant's  counsel.  The  testimony  was  not  at  all  confined  to 
the  condition  of  the  plaintiff  at  the  time  of  the  trial,  which  took 
place  about  eight  months  after  the  accident,  but  the  experts  were 
permitted  to  speculate  upon  the  consequences  of  the  alleged  injury 
which  might  affect  the  plaintiff  in  the  future.  It  was  suggested 
that  the  injury  might  affect  the  bladder,  the  kidneys,  and  other 
organs  of  the  body,  and  in  the  end  become  permanent.  The  fol- 
lowing is  a  specimen  of  the  testimony  given  by  one  of  the  plain- 
tiff's experts,  who  had  seen  the  plaintiff  but  once,  and  then  long 
after  the  accident:  "The  bladder  is  a  very  bad  master  and  a 
very  good  servant.  If  you  humor  it,  or  it  gets  into  bad  habits, 
it  is  almost  impossible  to  correct  them.  I  make  this  statement 
more  than  ordinarily  positive,  because  I  have  seen  a  great  many 


666  EVIDENCE. 

of  them.     Because  of  this,  irritability  in  this  cliild  is  either 
from   her   general   nervousness,   or  if   it   is   from  some   central 
trouble — the  result  of  the  blow  and  the  shock  she  has  received — 
the  outcome  of  it  is,  in  my  judgment,  permanent.     *     *     * 
The  effects  on  this  child,  of  this  bladder,  are  of  a  general  effect 
and  local.    The  general  effect  of  frequent  urinating  is  harassing, 
inasmuch  as  it  interferes  with  a  person's  going  about.     It  is  a 
pitiable   thing   sometimes.     *     *     *     The   coats   become    thick- 
ened, just  as  mueh  as  a  blacksmith's  arm  becomes  larger,  the 
bladder  growls  so  that  by  and  by  it  don't  hold  as  much  water, 
so  that  even  if  it  was  not  sensitive  the  person  could  not  re- 
tain it  and  would  have  to  empty  it,  because  it  wouldn't  retain 
it  any-  longer.     After  it  has  lasted,  it  subjects  the  person  to  a 
long  train  of  evils.     A  bladder  which  is  enlarged  and  irritable 
is  liable  to  have  infection  and  inflammation  set  in,  and  when 
you    add    inflammation    to    irritability    you    have    a    condition 
of  affairs  that  is  most  serious."      The  counsel  for  the  defend- 
ant here  interposed  and  said:     "I  object  to  this  kind  of  tes- 
timony.     It  is  of  the  most  general  character  possible.      I  have 
objected  to  the  question,  and  I  want  to  object  now  to  its  be- 
ing  allowed  to  continue."     The  plaintiff's  counsel  thereupon 
replied:    "If  there  is  any  part  of  the  evidence  that  is  not  re- 
sponsive, the  counsel  can  move  to  strike  it  out,  of  course."    The 
court  thereupon  stated.     "I  will  let  it  stand,"  and  thereupon 
the  defendant's  counsel  excepted.     In  response  to  another  ques- 
tion the  witness,  continuing,  stated:     "If  the  condition  of  the 
bladder — ^IVhen  that  condition  of  the  bladder  sets  in  which  I 
have  described,  it  is  only  a  step  further  for  it  to  ascend  to  the 
kidneys.     That  always  does  not  take  place;  but,  as  long  as  the 
lower  urinary  organs  are  in  that  state,  there  is  no  question 
about  the  jeopardy  of  the  upper  urinary  organs." 

It  is  undoubtedly  true  that  in  an  action  to  recover  damages 
for  personal  injuries  the  evidence  of  experts  as  to  the  future 
consequences  which  are  expected  to  follow  the  injury  are  com- 
petent ;  but  to  authorize  such  evidence,  however,  the  apprehended 
consequences  must  be  such  as,  in  the  ordinary  course  of  nature, 
are  reasonably  certain  to  ensue.  Consequences  which  are  con- 
tingent, speculative,  or  merely  possible  are  not  proper  to  be  con- 
sidered in  estimating  damages,  and  may  not  be  proved.  Strohm 
V.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  96  N.  Y.  305;  Tozer  v.  N.  Y. 
C.  &  H.  R.  R.  R.  Co.,  105  N.  Y.  617 ;  Jewell  v.  N.  Y.  C.  &  H.  R. 


EVIDENCE.  667 

R.  R.  Co.,  27  App.  Div.  500 ;  Kleiner  v.  Third  Ave.  R.  R.  Co., 
162  N.  Y.  193;  Smith  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  164  N.  Y. 
491.  We  think  this  rule  of  evidence  was  violated  in  this  ease, 
since  the  learned  trial  judge  permitted  to  stand,  for  the  con- 
sideration of  the  jury,  evidence  which  was  speculative  and  con- 
jectural. Indeed,  the  medical  experts  in  the  case,  upon  the  ex- 
amination of  the  plaintiff's  counsel,  were  permitted  to  state 
numerous  things  which  might  result  as  a  consequence  of  this 
injury.  This  is  apparent  from  the  extracts  which  we  have  re- 
ferred to,  and  much  more  evidence  of  like  character  which  is  to 
be  found  in  the  record;  therefore  the  learned  trial  judge,  in 
permitting  the  examination,  and  in  allo\^^ng  the  testimony  to 
go  into  the  record  to  be  considered  by  the  jury,  gave  the  sanction 
of  the  court  to  testimony  which  was  highly  speculative  and  con- 
jectural, and  so  far  prejudicial  to  the  defendant  as  to  require 
a  new  trial.  The  objections  made  and  exception  taken  were 
sufficient  to  direct  the  attention  of  the  court  to  the  point. 

The  judgment  should  therefore  be  reversed,  and  a  new  trial 
granted,  costs  to  abide  the  event. 

Parker,  C.  J.,  and  Martin,  Cullen,  and  Werner,  JJ..  concur. 
Gray,  J,,  not  sitting.    Haight,  J.,  not  voting. 

Judgment  reversed,  etc. 


HICKS  V.  MONARCH  CYCLE  MFG.  CO. 

New  York,  1903.     176  N.  Y.  111. 

Werner.  J.  In  this  action  the  plaintiff  seeks  to  recover  from 
the  defendant  $1,000  as  damages  for  the  failure  of  the  defend- 
ant to  return  a  bicycle  and  two  models  delivered  to  it  under  the 
following  circumstances:  The  plaintiff  was  part  owner  of  a 
patent  upon  an  improved  bicycle  gear.  During  the  month  of 
February,  1898,  he  delivered  to  defendant's  agents,  at  its  sales- 
room in  New  York  City,  a  bicycle  to  which  was  attached  the 
patented  device  referred  to,  and  also  two  models  thereof,  and 
left  them  there  for  the  purpose  of  having  defendant's  agents  ex- 
amine the  same  with  a  view  to  inducing  the  defendant  to  adopt 
it  upon  the  bicycles  manufactured  by  it. 

The  plaintiff's  testimony  tended  to  show,  and  the  jury  had 
the  right  to  find,  that  certain  authorized  agents  of  the  defend- 


66S  EVIDENCE. 

aut  examined  plaintiff's  bicycle  with  its  attachments  and  the 
accompanying  models,  and  expressed  a  desire  to  send  it  to  de- 
fendant's factory  in  Chicago  for  the  purpose  of  having  it  there 
examined  by  experts,  and  that  this  arrangement  was  agreed  to, 
with  the  proviso  that  said  propert}^  should  be  received  at  defend- 
ant's risk,  at  an  agreed  valuation  of  $1,000.  The  defendant 
admits  the  receipt  of  the  property,  the  shipment  thereof  to  its 
factory  at  Chicago,  and  its  failure  to  return  the  same  to  the 
plaintiff,  but  denies  that  any  valuation  was  ever  agreed  upon. 

As  part  of  the  plaintiff's  case  he  introduced  in  evidence  a  re- 
ceipt signed  by  one  Strout,  an  agent  of  the  defendant,  which 
was  in  the  following  form:  "Reed,  one  bicycle  from  J.  B.  Hicks 
for  examination  and  return.  Value  1000.00."  This  receipt 
was  signed  by  Strout  individually,  but  was  written  on  the  back 
of  a  business  card  of  the  defendant,  indicating  that  Strout  was 
the  manager  of  defendant's  New  York  sales  department.  De- 
fendant 's  witnesses  gave  evidence  tending  to  show  that  the  state- 
ment as  to  value  was  not  in  the  receipt  when  it  was  signed,  and 
that  this  statement  had  been  written  into  the  receipt  after  its 
delivery  to  the  plaintiff. 

The  case  was  submitted  to  a  jury,  and  plaintiff  had  a  verdict 
for  $1,000.  The  judgment  entered  upon  that  verdict  was  affirmed 
by  a  divided  court.  As  there  was  some  evidence  to  support  the 
verdict,  the  present  review  must  be  confined  to  questions  arising 
upon  the  rulings  of  the  trial  court  in  the  reception  and  exclusion 
of  evidence.  We  shall  limit  our  discussion  to  a  single  exception, 
which  we  think  is  fatal  to  the  judgment  appealed  from. 

Upon  the  question  of  damages  defendant  called  an  expert  in 
the  manufacture  of  bicycles,  and  he  was  asked  by  defendant's 
counsel  if  he  could  tell  as  an  expert  what  it  would  cost  to  re- 
produce by  hand  a  model  fashioned  after  the  patent  referred  to. 
He  answered  in  the  affirmative,  and  was  then  asked  what  it 
would  cost.  This  question  was  objected  to  by  plaintiff's  counsel 
as  immaterial  and  incompetent,  "and  also  upon  the  ground 
that  it  appears  that  the  wheel  was  received  and  the  models  on 
the  valuation  of  $1,000.00  by  the  company."  The  objection  was 
sustained,  and  the  defendant  took  an  exception. 

This  evidence  was  clearly  admissible.  "Whether  the  sum  of 
$1,000,  which  the  plaintiff  claimed  had  been  agreed  upon  as  the 
value  of  the  articles  delivered  by  him  to  the  defendant,  was  to 
be  regarded  as  liquidated  damages,  or  merely  as  a  penalty,  was 


EVIDENCE.  669 

a  question  of  intent  to  be  deduced  from  the  circumstances.  If 
the  sum  named  was  an  unreasonable  price  for  the  articles,  evi- 
dence tending  to  show  that  fact  would  have  had  a  very  mate- 
rial bearing  upon  the  question  of  damages.  The  rule  is  that 
"when  the  stipulated  sum  is  disproportionate  to  presumable  or 
probable  damage,  or  to  a  readily  ascertainable  loss,  the  courts 
will  treat  it  as  a  penalty,  and  will  rely  on  the  principle  that 
the  precise  sum  was  not  the  essence  of  the  agreement,  but  was 
in  the  nature  of  security  for  performance."  Ward  v,  Hudson 
River  Bldg.  Co.,  125  N.  Y.  230 ;  Curtis  v.  Van  Bergh,  161  N. 
Y.  47;  3  Parsons  on  Contracts  (6th  Ed.)  157.  *  *  *  Con- 
sidering the  nature  of  the  case,  the  question  of  damages  was  ob- 
viously an  important  one,  and  the  erroneous  ruling  pointed  out 
must  have  injuriously  affected  defendant's  rights. 

For  the  reasons  stated  the  judgment  should  be  reversed,  and 
a  new  trial  granted,  with  costs  to  abide  the  event. 

Martin,  Yann,  and  Cullen,   JJ.,   concur.     Parker,  0.  J., 
and  Bartlett  and  Haight,  JJ.,  dissent. 

Judgment  reversed,  etc. 


ROBINSON  V.  N.  Y.  ELEVATED  R.  R.  Co. 
New  York,  1903.     175  X.  Y.  221. 

Bartlett,  J.  This  is  the  usual  elevated  railroad  case  to  re- 
cover fee  and  rental  damages,  and  under  the  unanimous  decision 
the  defendant  railway  companies  are  confined  to  the  argument 
of  legal  errors  duly  raised  by  exceptions. 

The  counsel  for  the  appellants  insists  that  the  learned  trial 
judge  admitted,  over  objection  and  exception,  evidence  regard- 
ing sales  and  rentals  of  specific  pieces  of  property  on  Pearl  street 
other  than  the  premises  in  suit,  in  violation  of  the  rule  laid  doAvn 
by  this  court  in  the  case  of  Jamieson  v.  Kings  County  Elevated 
Railway  Co.  (147  N.  Y.  322,  325).  Judge  Finch  there  said: 
"The  plaintiff  sought  to  prove  the  evil  effect  of  the  road  in 
diminishing  values  by  the  process  of  calling  the  o^vTiers  of  prop- 
erty in  the  vicinity  and  proving,  in  each  case,  what  the  particular 
premises  owned  by  the  witness  rented  for  before  the  road  was 
built  and  what  thereafter.  There  were  objections  and  ex- 
ceptions.    Such  a  process  is  not  permissible.     Each  piece  of  evi- 


670  EVIDENCE. 

deiK'e  raised  a  collateral  issue  (Gouge  v.  Roberts,  53  N.  Y.  619), 
and  left  the  court  to  try  a  dozen  issues  over  as  many  separate 
parcels  of  property.  We  have  held  such  a  mode  of  proof  to 
be  inadiuissible.  (^Huntington  v.  Attrill,  118  N.  Y.  365;  Matter 
of  Thompson,  127  N.  Y.  463.)  Tlie  elevated  railroad  cases  in 
this  court,  to  which  the  plaintift'  refers  us,  give  no  warrant  for 
such  a  mode  of  proof,  but  indicate  that  the  general  course  and 
current  of  values  nuist  be  shown  by  persons  competent  to  speak, 
leaving  to  a  cross-examination  any  inquiry  into  specific  instances 
if  such  be  deemed  essential.  Almost  all  the  evidence  of  depre- 
ciation was  of  the  erroneous  character,  and  we  cannot  say  that 
it  may  not  have  worked  harm  to  the  defendant." 

The  rule  thus  laid  down  was  followed  in  Witmark  v.  New 
York  Elevated  R.  R.  Co.  (149  N.  Y.  393)  and  other  cases. 

The  course  of  procedure  under  this  rule  may  be  thus  briefly 
stated:  Plaintiff  having  called  as  a  witness  an  expert,  is  per- 
mitted to  show^  the  general  course  and  current  of  values  in  the 
immediate  vicinity,  leaving  to  a  cross-examination  any  inquiry 
into  specific  instances  if  such  be  deemed  essential,  the  reason 
for  the  rule  being  that  to  permit  evidence  of  the  rental  or  fee 
value  of  other  premises  would  raise  in  each,  case  a  collateral 
issue  to  be  tried. 

When  the  plaintiff's  expert  witness  is  cross-examined  by  the 
defendant  as  to  specific  instances  it  is  competent  upon  a  redi- 
rect examination  for  the  plaintiff  to  make  such  full  inquiry  as 
he  may  be  advised,  as  to  each  one  of  the  specific  instances  brought 
out  on  cross-examination. 

In  the  case  at  bar  the  plaintiffs  swore  their  expert  and  con- 
ducted the  direct  examination  in  compliance  with  the  rule;  on 
cross-examination  the  defendants  made  inquiry  as  to  about 
twelve  pieces  of  other  property  in  the  immediate  neighborhood ; 
on  redirect  examination  the  plaintiffs  examined  the  witness, 
over  the  objection  and  exception  of  the  defendants,  in  regard 
to  the  fee  or  rental  value  of  some  sixteen  additional  pieces  of 
property  in  the  vicinity  of  the  premises  in  suit. 

We  are  of  opinion  that  the  introduction  of  evidence  by  the 
plaintiffs  in  regard  to  these  additional  pieces  of  property  in 
the  immediate  neighborhood  was  in  direct  violation  of  the  rule 
we  have  discussed. 

It  was  for  the  plaintiffs  to  prove  the  general  course  of  values 
and  for  the  defendants  to  give  evidence  of  specific  instances. 


EVIDENCE.  671 

If  it  be  true  that  such  evidence  on  the  part  of  the  defend- 
ants opened  the  door,  as  the  respondents'  counsel  claims,  for 
the  introduction  of  as  many  additional  pieces  of  property  as 
they  saw  fit,  it  would  result  in  raising  numerous  collateral 
issues  and  lead  to  the  utter  subversion  of  the  rule  laid  dowoi  in 
the  Jamieson  case.     *     *     * 

Judgment  reversed.    All  concur. 


BARTOW  V.  ERIE  R.  R.  CO. 
New  Jersey,  1905.     44  X.  J.  L.  12. 

Fort,  J.  There  are  a  number  of  grounds  for  reversal  assigned 
in  this  case,  but  a  careful  examination  of  them  leads  us  to  con- 
clude that  there  is  but  a  single  one  that  has  substance.  It  is 
clear,  under  the  proof,  that  the  plaintiff  could  not  have  been  non- 
suited, nor  a  verdict  directed  for  the  defendant,  upon  the 
testimony. 

There  were  no  reversible  errors  in  the  rulings  of  the  court 
upon  the  admissions  of  testimony  excepted  to,  nor  in  the  charge 
of  the  court,  except  in  one  respect,  with  relation  to  the  allowance 
of  damages  for  loss  of  profits  in  the  business  of  the  plaintiff. 
Exception  is  taken  to  the  refusal  of  the  court  to  charge  the  de- 
fendant's second  request.  That  was  as  follows:  "As  there  is 
no  definite  proof  of  the  amount  of  the  loss  of  profits  sustained 
by  the  plaintiff  in  his  business,  no  damages  can  be  allowed  for 
his  loss  of  profits."  And  exception  was  also  taken  to  what  the 
court  did  say  upon  the  question  of  the  right  of  recovery  by 
the  plaintiff'  for  loss  of  profits,  and  the  leaving  to  the  jury  of 
the  question  whether,  under  the  evidence,  the  plaintiff  was  mak- 
ing any  profits  from  his  business. 

We  til  ink  the  second  request  should  have  been  charged  in  this 
case  in  lieu  of  what  the  court  did  charge.  There  was  no  proof 
in  the  cause  which  would  .justify  the  jury  in  assessing  any  dam- 
ages to  the  plaintiff  for  loss  of  profits.  The  only  testimony  given 
on  the  subject  was  that  of  the  plaintiff  himself,  and  that 
amounted  to  nothing  more  than  a  mere  statement  that  he  took 
in,  in  his  business,  from  $1,000  to  $1,100  per  annum.  This  was 
proof  only  of  the  gross  amoimt  of  his  business.  His  books  were 
not  produced,  nor  was  there  given  by  him  any  estim.ate  of  the 


672  EVIDENCE. 

expenses  incident  to  the  conducting  of  his  business,  or  of  the  pro- 
portion of  the  expenses  to  the  gross  income.  To  justify  a  finding 
of  loss  of  prolils  as  a  part  of  the  verdict  in  a  cause,  the  proof 
must  be  such  as  will  show  the  jury  with  reasonable  certainty 
what  the  profits  alleged  to  have  been  lost  would  have  been,  but 
for  the  injury  to  the  plaintiff.  Profits  lAust  be  proved.  They 
cannot  be  estimated  by  the  jury  without  data  to  justify  their 
finding.  East  Jersey  Water  Co.  v.  Bigelow,  60  N.  J.  Law,  201. 
There  being  no  proof  of  loss  of  profits  in  the  business  of  the 
plaintiff  which  the  jury  could,  under  the  proof,  arrive  at  with 
reasonable  certainty,  it  was  error  for  the  trial  judge  to  submit 
the  question  of  this  class  of  damages  to  the  jury,  and  he  should 
have  charged  as  requested. 

For  this  error,  and  this  alone,  the  judgment  is  reversed. 


MARRIOTT  V.  WILLIAMS. 
California,  1908.     152  Cal.  705. 

Shaw,  J.  This  is  an  action  to  recover  damages  for  personal 
injuries  inflicted  upon  the  plaintiff  by  defendants.  The  jury 
rendered  a  verdict  against  the  defendant  Williams  alone,  and 
judgment  was  entered  accordingly.  The  appeal  is  by  the  defend- 
ant Williams  from  an  order  denying  his  motion  for  a  new  trial. 

The  complaint  alleges  that  the  defendants  entered  plaintiff's 
home  and  there  assaulted,  beat,  and  wounded  him,  shooting  him 
twice  in  the  leg,  breaking  both  bones  below  the  knee,  and  pierc- 
ing the  fleshy  part  of  the  thigh,  and  bruising  and  cutting  his  head 
and  hand.  The  answer  admits  that  Beale  inflicted  the  cuts  and 
bruises  on  the  head  and  hand,  and  that  Williams  shot  plain- 
tiff in  the  leg,  but  alleges  that  it  was  all  done  in  necessary  self- 
defense.  Upon  the  trial,  there  was  practically  no  controversy 
over  the  fact  that  Beale  cut  and  bruised  the  plaintiff's  head 
and  hand  by  beating  him  with  a  pistol,  and  that  Williams  shot 
plaintiff  in  the  thigh  and  below  the  knee,  breaking  the  bones 
as  alleged. 

The  plaintiff  was  the  publisher  of  a  weekly  paper  called  the 
"News  Letter."  The  defendants  went  to  his  house  for  the 
avowed  purpose  of  demanding  and  procuring  from  him  a  re- 
traction of  a  statement  published  in  the  paper.    Upon  entering 


EVIDENCE.  673 

the  hallway  of  the  house,  the  plaintiff  asked  them  for  their  hats, 
and  took  Beale's  hat  and  started  toward  the  rear  of  the  hall  to 
hang  it  on  the  hat  rack.  Before,  or  immediately  after,  this  was 
done,  Beale  demanded  of  Marriott  the  retraction,  and  almost 
immediately  struck  the  blows  on  the  hand  and  head,  while  the 
two  were  engaged  in  a  scuffle.  Marriott  broke  away  and  started 
to  run  up  the  stairway,  which  was  on  the  left  side  of  the  hall- 
way. There  were  20  steps  in  the  stairway  and  about  the  four- 
teenth step  from  the  bottom  it  made  a  quarter  turn  to  the  left 
to  reach  the  floor  above.  When  he  had  gone  perhaps  a  little 
more  than  half  way  up,  Williams  shot  at  him  three  times,  hitting 
him  twice,  as  alleged.  Upon  receiving  the  shot  which  broke  his 
leg,  the  plaintiff  fell  forward  upon  the  upper  steps  and  crawled 
to  the  upper  floor  and  into  his  bedroom.  Almost  immediately 
his  wife  came  into  the  room  from  the  upper  part  of  the  stairway 
where,  as  she  testified,  she  witnessed  a  part  of  the  shooting. 
The  defendants  did  not  pursue  Marriott,  but  stood  on  the  lower 
floor  during  the  altercation  and  shooting  and  until  Marriott  had 
disappeared,  and  then  left  the  house. 

The  complaint  alleged  malice  on  the  part  of  the  defendants 
and  asked  exemplary  damages.  It  was  therefore  proper  to  allow 
evidence  of  the  defendants'  wealth.  Sloan  v.  Edwards,  61  Md. 
100 ;  Webb  v.  Oilman,  80  Me.  177 ;  Draper  v.  Baker,  61  Wis. 
450;  BrowTi  v.  Evans  (C.  C.)  17  Fed.  912.  Such  evidence  is  ad- 
mitted to  enable  the  jury  to  determine  what  amount  of  punish- 
ment would  be  inflicted  upon  the  defendant  by  compelling  him 
to  pay  a  given  sum  of  money.  Hence  it  is  proper  to  show  his 
wealth  at  the  time  of  the  trial,  as  was  done  here,  instead  of  at 
the  time  of  the  injury.  In  mitigation  of  damages  the  defendants 
pleaded  the  publication  of  the  articles  above  referred  to,  which, 
as  they  allege,  were  defamatory,  and  gave  them  just  cause  for 
great  indignation.  The  court  instructed  the  jury  that  these  mat- 
ters could  not  be  considered  in  reduction  of  the  actual  dam- 
ages accruing  from  his  pain,  physical  injuries,  loss  of  time,  and 
moneys  expended,  or  any  other  element  of  actual  damages,  but 
only  in  reduction  of,  or  set-off  against,  the  exemplary  damages. 
That  this  was  a  correct  exposition  of  the  law  is  well  settled. 
Goldsmith  v.  Joy,  61  Vt.  488 ;  Badostain  v.  Grazide,  115  Cal.  429 ; 
Fenclon  v.  Butts,  53  Wis.  351 ;  Corcoran  v.  Harran,  55  Wis. 
122 ;  Donnelly  v.  Harris,  41  111.  128.  The  assault  and  injury  to 
the  plaintiff  were  admitted.    The  answer  that  they  were  inflicted 

43 


674  EVIDENCE. 

iu  self-defense  was  an  affirmative  defense,  which  it  was  necessary 
for  the  defendants  to  establish  by  a  preponderance  of  the  evi- 
dence. A  person  who  sues  for  a  personal  injury  at  the  hands 
of  another  is  not  bound  to  prove,  iu  the  first  instance,  that  he  was 
not  the  aggressor  and  that  the  defendant  did  not  act  in  self-de- 
fense. He  must  prove  the  assault  and  the  injury,  if  they  are 
denied.  In  so  doing,  he  may  incidentally  bring  out  facts  ten- 
ding to  support  a  plea  of  self-defense,  and  if  so  the  defendant 
will  be  entitled  to  the  benefit  of  such  evidence.  But  the  burden 
of  proof  to  establish  the  self-defense  remains  with  the  defend- 
ant. There  is  no  presumption  that  a  bodily  injury  is  justifiable, 
and  the  justification  must  be  proven  by  him  who  asserts  it.  The 
instructions  of  the  court  embodying  these  propositions  were 
properly  given.  Sellman  v.  Wheeler,  95  Md.  751 ;  Gizler  v. 
Witzel,  82  111.  326;  Johnson  v.  Strong,  58  S.  W.  430,  22  Ky. 
Law  Rep.  577;  Phillips  v.  Mann.  44  S.  AV.  879,  19  Ky.  Law 
Rep.  1705 ;  Rhiuehart  v.  Whitehead,  64  Wis.  42. 

In  actions  against  two  or  more  persons  for  a  single  tort,  there 
cannot  be  two  verdicts  for  different  sums  against  different  de- 
fendants upon  the  same  trial.  There  can  be  but  one  verdict  for 
a  single  sum  against  all  who  are  found  guilty  of  the  tort.  All 
who  are  guilty  at  all  are  liable  for  the  whole  amount  of  the  ac- 
tual damages  arising  from  the  injury  inflicted,  irrespective  of 
the  degree  of  culpability.  Huddleson  v.  Borough,  111  Pa.  110 ; 
McCool  V.  Mahoney,  54  Cal.  492;  Nichols  v.  Dunphy,  58  Cal. 
607 ;  Everrord  v.  Gabbert,  83  Ind.  492 ;  Carney  v.  Reed,  11  Ind. 
417 ;  Cooley  on  Torts,  p.  136 ;  1  Suth.  Dam.  §  140.  The  court  did 
not  err  in  Instructing  the  jury  to  this  effect. 

There  are  some  other  objections  to  the  charge  to  the  jury,  and 
there  are  other  rulings  in  the  admission  of  evidence  which 
are  questioned,  but  they  are  all  either  covered  by  what  we  have 
said,  or  they  are  too  trivial  to  require  notice. 

The  order  is  affirmed. 

We  concur:  McFarland,  J.;  Lobigan,  J.;  Ajstgellotti,  J.; 
Beatty,  C.  J. 


GOMBERT  V.  N  Y.  C  &  H.  R.  R.  R.  CO. 

N.  Y.  Court  of  Appeals,  May,  1909. 

Werner,  J. — In  the  City  of  North  Tonawanda  there  is  a  high- 
way kno^\^l  as  Wheatfield  street,  which  runs  substantially  east 


EVIDENCE.  675 

and  west  and  crosses  at  grade  the  tracks  of  the  New  York  Central 
and  Hudson  River  Railroad  Company,  which  run  practically 
north  and  south.  The  Lehigh  Valley  Railroad  uses  these  tracks 
in  its  traffic  between  Buffalo  and  Niagara  Falls.  On  the  2d 
day  of  October,  1905,  the  plaintiff  was  driving  across  these 
tracks  on  Wheatfield  street  and  collided  with  a  southbound 
Lehigh  Valley  train.  The  crossing  was  equipped  with  gates 
operated  by  compressed  air  from  a  tower  maintained  by  the  New 
York  Central  Railroad  Company,  which  was  in  charge  of  a 
gateman  employed  by  that  company.  The  plaintiff  brought  this 
action  to  recover  for  the  injuries  sustained  in  that  collision, 
and  both  of  the  corporations  above  named  were  made  parties 
defendant  upon  the  theory  that  the  one  had  been  negligent  in 
the  operation  of  its  gates  and  the  supervision  of  its  crossing, 
while  the  other  had  been  negligent  in  the  operation  of  its  train. 
For  the  purposes  of  this  appeal  we  may  assume  that  the  alleged 
negligence  of  the  defendants  and  the  plaintiff's  alleged  freedom 
from  contributory  negligence  presented  questions  of  fact  for 
the  jury.     *     *     * 

There  is  another  exception  in  the  case,  however,  which  presents 
a  much  more  serious  questions.  That  is  the  exception  taken  to 
the  ruling  imder  which  the  court  admitted  evidence  of  the  in- 
come, profit  or  earnings  which  the  plaintiff  had  derived  from 
his  business  during  the  three  years  preceding  the  accident.  In 
the  interrogatories  of  plaintiff's  counsel  the  plaintiff's  revenue 
from  this  source  was  called  ''earnings,"  but  that  is  mere  no- 
menclature which  cannot  be  permitted  to  determine  the  in- 
quiry whether  the  plaintiff's  income  had  in  fact  been  of  such  a 
character  as  to  make  it  a  proper  element  of  the  damages  which 
he  claimed  the  right  to  recover.  As  bearing  upon  that  branch 
of  the  case  it  appeared  that  for  a  number  of  years  prior  to  the 
accident  the  plaintiff  had  been  a  "building  carpenter  con- 
tractor." He  gradually  took  entire  contracts  for  certain 
amounts,  although  sometimes  he  furnished  only  the  labor,  at 
other  times  only  the  material,  and  again  both  material  and  labor. 
The  extent  of  his  business  was  not  disclosed,  but  it  appeared  that 
he  had  a  horse  and  wagon  and  employed  men.  From  these 
facts  the  inference  was  clearly  permissible  that  he  must  have 
had  invested  in  his  business  some  capital  with  which  to  carry 
out  his  contracts.  The  circumstance  that  he  occasionally  did 
some  work  with  his  own  hands  simply  emphasizes  the  fact  that 


676  EVIDENCE. 

his  principal  occupation  seems  to  have  consisted  in  figuring  on 
contracts,  overseeing  the  work  of  his  employees,  and  making 
such  arrangements  i'or  materials  and  labor  as  the  nature  of  his 
undertakings  required.  Upon  these  meagre  facts  we  are  to  de- 
termine whether  the  income  of  the  plaintiff  for  the  three  years 
preceding  the  accident  falls  within  the  category  of  personal 
earnings,  the  loss  of  which  it  was  permissible  to  prove  as  an 
element  of  the  damages  suffered  by  him  or  whether  it  must  be 
classed,  either  wholly  or  substantially,  as  uncertain  business 
profits  proceeding  from  invested  capital  which  may  not  be  con- 
sidered in  the  process  of  ascertaining  his  loss.  The  rule  of  law 
which  governs  this  phase  of  actions  of  this  character  has  long 
been  settled  as  an  abstract  legal  proposition,  but  like  many  other 
legal  rules,  it  sometimes  encounters  serious  difficulties  in  the 
course  of  its  application  to  particular  facts.  There  are  cases  in 
which  the  facts  are  so  definite  and  unequivocal  as  to  necessarily 
relegate  them  to  either  one  or  the  other  of  the  two  extremes  of 
the  rule.  Between  these  extremes  w^e  find  every  degree  and 
variety  of  fact  and  circumstance  to  which  the  rule  must  be  ap- 
plied, and  occasionally  these  are  so  near  the  shadowy  border 
line  as  to  present  troublesome  questions.  A  few  citations  will 
serve  as  illustrations.  In  Masterton  v.  Village  of  Mt.  Vernon 
(58  N.  Y.,  391,  396)  the  plaintiff  was  permitted  to  testify  to  his 
profits,  year  by  year,  in  the  bnsiness  of  buying  and  selling  teas, 
in  which  the  plaintiff  had  attended  to  the  buying,  which  re- 
quired great  skill.  .  The  business  had  been  extensive  and  had 
fallen  off  considerably  after  the  injury  to  the  plaintiff.  There  it 
was  held  to  be  error  to  have  received  evidence  of  the  past  profits 
of  the  plaintiff,  because  they  were  necessarily  uncertain  and 
fluctuating,  and  in  stating  that  conclusion  this  court  said: 
"The  plaintiff  had  the  right  to  prove  the  business  in  which  he 
was  engaged,  its  extent,  and  the  particular  part  transacted  by 
him,  and,  if  he  could,  the  compensation  usually  paid  to  persons 
doing  such  business  for  others.  These  are  circumstances  the 
jury  have  a  right  to  consider  in  fixing  the  value  of  his  time. 
But  they  ought  not  to  be  permitted  to  speculate  as  to  the  un- 
certain profits  of  commercial  ventures  in  which  the  plaintiff, 
if  uninjured,  would  have  been  engaged."  This  excerpt  from  the 
opinion  in  that  ease  clearly  discloses  the  reason  of  the  rule.  It 
is  simply  an  adaptation  to  a  special  class  of  cases  of  that  general 
rule  of  damages  under  which,  at  common  law,  the  party  injured 


EVIDENCE.  677 

may  recover  for  any  loss  that  is  definitely  fixed  or  is  capable  of 
ascertainment  with  reasonable  certainty.  The  later  decisions 
upon  the  subject  were  reviewed  by  this  court  in  the  compara- 
tively recent  case  of  Kronold  v.  City  of  N.  Y.  (186  N.  Y.,  40, 
44).  There  the  plaintiff  was  engaged  in  selling  Swiss  em- 
broideries, for  which  he  took  orders  from  sample  designs  or 
from  drawings.  He  maintained  an  office,  but  its  equipment  and 
the  expense  of  keeping  it  were  so  insignificant  as  compared  with 
the  amount  which  he  earned  as  the  result  of  personal  canvassing 
and  solicitation  that  it  was  held  to  have  been  error  to  have  ex- 
cluded proof  of  his  earnings  previous  to  the  personal  injury 
upon  which  he  based  his  action.  In  that  case  some  of  the  earlier 
decisions  were  reviewed,  and  these  clearly  demonstrate  that 
when  a  claim  for  damages  arising  out  of  personal  injuries  is 
based  upon  the  destruction  or  impairment  of  one's  ability  to  per- 
form labor  or  render  service  which  is  essentially  and  funda- 
mentally personal  in  character,  evidence  may  be  given  as  to 
the  nature  and  extent  of  the  loss.  This  rule  has  been  applied 
to  lawyers,  physicians,  dentists,  teachers,  midwives,  gangers, 
pilots,  book  agents  and  other  professional  or  semi-professional 
occupations  in  which  the  element  of  personal  earnings  has  been 
held  to  predominate  over  a  small  and  purely  incidental  in- 
vestment of  capital  (Kronold  v.  City  of  N.  Y.,  supra;  Ehrgott 
V.  :\[ayor,  &c.,  of  N.  Y.,  96  N.  Y.,  264;  Simonin  v.  N.  Y.,  L.  E. 
&  W.  RR.,  36  Hun,  214;  Nash.  v.  Sharpe,  19  Hun,  364;  LjTich 
V.  B'klyn  City  RR.,  123  N.  Y.,  657;  Waldie  v.  B'klyn  Heights 
RR.,  78  App.  Div.,  557). 

The  latest  case  in  which  this  court  has  had  occasion  to  apply 
this  rule  is  that  of  Weir  v.  Union  R'y  (188  N.  Y.,  416).  That 
case  may  be  fairly  said  to  be  the  antithesis  of  the  Kronold  case, 
for  it  furnishes  a  very  pointed  illustration  of  the  opposite  ex- 
treme of  the  rule.  There  the  plaintiff  had  rented  a  small  place 
in  which  he  established  an  oyster  stand  and  limch  room.  The 
supplies  purchased  and  sold  by  the  plaintiff  varied  in  amount  to 
such  an  extent  that  occasional  changes  had  to  be  made  in  the 
number  of  persons  employed  as  waiters  and  assistants.  Some- 
times there  were  two  or  three,  and  at  other  times  only  one. 
The  plaintiff's  income  consisted  of  the  difference  between  the 
gross  receipts  and  the  running  expenses  of  the  establishment, 
and  it  fluctuated  from  week  to  week.  There  the  trial  court 
received  evidence  of  the  plaintiff's  weekly  profits,  and  the  ruling 


678  EVIDENCE. 

was  approved  by  the  Appellate  Division.  When  the  case  reached 
this  court,  however,  the  judgment  was  reversed  upon  the  ground 
that  the  evidence  was  incompetent.  That  case  is  strikingly  ap- 
posite to  the  discussion  here,  because  it  clearly  shows  that  profits 
are  not  earnings  simply  because  a  business  is  very  small,  any 
more  than  earnings  are  necessarily  to  be  considered  as  profits 
because  they  happen  to  be  large.  In  other  words,  it  is  the  char- 
acter of  the  business  or  occupation  and  of  the  income  derived 
therefrom  that  must  determine  the  admissibility  of  such  evi- 
dence in  this  class  of  actions.  If  the  asserted  loss  consists  of 
profits  which  are  essentially  the  uncertain  and  fluctuating  in- 
crement of  invested  capital,  proof  thereof  is  inadmissible  no 
matter  how  small  it  may  be ;  and,  conversely,  if  the  loss  is  due  to 
the  destruction  or  impairment  of  one's  personal  earning  ca- 
pacity the  evidence  thereof  is  not  to  be  excluded  simply  be- 
cause it  may  be  large. 

In  the  light  of  these  distinctions  the  case  at  bar  is  easily  classi- 
fied. We  think  the  evidence  of  the  plaintiff's  income  from  his 
business  for  the  three  years  preceding  the  accident  in  which  he 
suffered  his  injuries  was  incompetent  because  it  related  to  profits 
depending  in  considerable  measure  upon  capital  invested  in 
business,  as  distinguished  from  personal  earnings.  We  have 
said  that  the  evidence  upon  this  subject  was  somewhat  meagre, 
and  so  it  was.  That  is,  however,  either  the  fault  or  the  misfor- 
tune of  the  plaintiff.  If  there  was  in  existence  any  further  evi- 
dence in  addition  to  that  adduced  which  might  have  tended  to 
show  that  the  plaintiff 's  occupation  was  such  as  to  place  his  loss 
of  income  in  the  category  of  personal  earnings,  it  was  in  the 
plaintiff's  possession  and  he  should  have  produced  it.  If  there 
was  no  such  additional  evidence  he  must  abide  by  the  usual 
and  necessary  inference  that  a  contractor,  engaged  in  the  busi- 
ness of  constructing  buildings,  in  which  he  buys  material,  em- 
ploys labor,  oversees  the  work,  and  looks  for  his  returns  to  the 
difference  between  what  he  gets  and  what  he  expends  in  per- 
forming his  contracts,  is  not  one  who  depends  upon  his  per- 
sonal earnings  but  upon  the  profits  of  his  business.  In  either 
event  the  defendants  are  entitled  to  a  new  trial. 

The  judgment  should  be  reversed  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 

Judgment  reversed.     All  concur. 


EVIDENCE.  679 

The  true  rule  of  damages  in  tort  is  that  the  wrongdoer  is  liable  for 
all  injuries  resulting  directly  from  the  wrongful  act.  It  is  error  to 
charge  the  jury  that  only  such  damages  can  be  recovered  as  defendant 
might  reasonably  be  supposed  to  have  contemplated  as  likely  to  result 
from  his  act.     Vosburg  v.  Putney,  80  Wis.  523. 

In  an  action  for  personal  injuries,  plaintiff,  if  entitled  to  recover 
compensatory  damages,  can  get  damages  as  follows:  (1)  for  expenses 
incurred  for  doctors  and  nurses;  (2)  value  of  time  lost  during  disa- 
bility; (3)  an  award  for  pain  and  anxiety.  Kline  v.  Santa  Barbara 
Ry.  Co.,  150  Cal.  741. 

In  an  action  for  personal  injuries  to  a  woman,  evidence  tending  to 
show  a  miscarriage  and  a  still-birth  is  admissible.  Chicago  Union 
&  Traction  Co.  v.  Ertrachter,  228  111.  114. 

Proof  of  plaintiff's  wages  or  earnings  prior  to  the  injury  is  admis- 
sible.    Barnes  v.  Danville  St.  Ry.  Co.,  235  111.  566. 

Proof  as  to  possible  speculative  profits  of  a  mill  whose  idleness  was 
caused  by  a  breakdown  of  machinery  furnished  by  defendant,  is  inad- 
missible as  remote.    Callahan  &  Co.  v.  Chickasha  Co.,  17  Oklahoma  544. 

A  boy  of  thirteen  was  permanently  injured.  Evidence  that  he  was 
obedient  to  his  mother  and  economical  in  his  habits  can  be  admitted, 
as  bearing  on  his  earning  capacity.  Mill  &  Elevator  Co.  v.  Anderson, 
98  Tex.  156. 


XVI.  PROVINCE  OF  COURT  AND  JURY. 

PHILLIPS  V.  LONDON  &  S.  W.  RAILWAY. 
Court  of  Appeal,  1879.     5  Q.  B.  Div.  78. 

This  was  an  appeal  by  the  defendants  from  a  decision  of  the 
Queen's  Bench  Division  directing  a  new  trial.  The  application 
was  made  on  the  ground  of  insufficiency  of  damages  and  mis- 
direction. The  jury  gave  the  plaintiff  £7000.  The  plaintiff 
moved-  for  a  new  trial,  which  was  granted  by  the  Queen 's  Bench 
Division  on  the  ground  that  the  amount  of  damages  given  by  the 
jury  was  so  small  as  to  show  that  they  must  have  left  out  of  con- 
sideration some  of  the  circumstances  which  ought  to  have  been 
taken  into  account.     The  defendants  appealed. 

James,  L.  J.  In  this  case  we  are  of  opinion  that  we  cannot 
on  any  of  the  points  differ  from  the  judgment  of  the  Queen's 
Bench  Division. 

The  first  point,  which  is  a  very  important  one,  relates  to  dis- 
senting from  the  verdict  of  a  jury  upon  a  matter  which,  gener- 
ally speaking,  is  considered  to  be  within  their  exclusive  province, 
that  is  to  say,  the  amount  of  damages.  We  agree  that  judges 
have  no  right  to  overrule  the  verdict  of  a  jury  as  to  the  amount 
of  damages,  merely  because  they  take  a  different  view,  and  think 
that  if  they  had  been  the  jury  they  would  have  given  more  or 
would  have  given  less;  still  the  verdicts  of  juries  as  to  the 
amount  of  damages  are  subject,  and  must,  for  the  sake  of  justice, 
be  subject,  to  the  supervision  of  a  court  of  first  instance,  and 
if  necessary  of  a  court  of  appeal  in  this  way,  that  is  to  say,  if 
in  the  judgment  of  the  court  the  damages  are  unreasonably 
large  or  unreasonably  small,  then  the  court  is  bound  to  send  the 
matter  for  reconsideration  by  another  jury.  The  Queen's  Bench 
Division  came  to  the  conclusion  in  this  case  that  the  amount  of 
the  damages  was  unreasonably  small,  and  for  the  reasons  which 
were  given  by  the  Lord  Chief  Justice,  pointing  out  certain 
topics  which  the  jury  could  not  have  taken  into  consideration. 
I  am  of  opinion,  and  I  believe  my  colleagues  are  also  of  opinion, 
for  the  same  reasons  and  upon  the  same  grounds,  that  the  dam- 

680 


PROVINCE  OF  COURT  AND  JURY.  681 

ages  are  unreasonably  small,  to  what  extent  of  course  we  must 
not  speculate,  and  have  no  business  to  say.  We  are,  therefore, 
of  opinion  that  the  Queen's  Bench  Division  was  right  in  direct- 
ing a  new  trial.     *     *     * 

Brett  and  Cotton,  L.  JJ.,  concurred. 

Appeal  dismissed. 


GAMBRILL  v.  SCHOOLEY. 
Maryland,  1901.     93  Md.  48. 

Action  of  libel  for  dictation  of  defamatory  matter  to  a  confi- 
dential stenographer. 

Pearce,  j  *  *  *  The  defendant's  9th  prayer  was  prop- 
erly rejected,  because  it  precluded  the  jury  from  including  in 
their  verdict  any  allowance  whatever  for  exemplary  or  punitive 
damages.  Whenever  the  words  charged  in  an  action  for  slander 
or  libel  are  actionable  per  se,  as  in  this  case,  the  damages  are 
exclusively  within  the  sound  discretion  of  the  jury.  13  Am. 
&  Eng.  Enc.  Law,  432;  Tripp  v.  Thomas,  3  Barn.  &  C.  427; 
Marks  v.  Jacobs,  76  Ind.  216;  Nolan  v.  Traber,  49  Md.  460; 
Negley  v.  Farrow,  60  Md.  158.  Whether  exemplary  damages 
shall  be  given  or  not  is  in  all  cases  for  the  jury.  Jerome  v. 
Smith.  48  Vt.  230 ;  Boardman  v.  Goldsmith,  Id.  403.  The  assess- 
ment of  damages  is  peculiarly  the  province  of  a  jury  in  an 
action  for  libel.  The  damages  in  such  an  action  are  not  limited 
to  the  amount  of  pecuniary  loss  which  the  plaintiff  is  able  to 
prove.  Davis  v.  Shepstone,  11  App.  Gas.  191,  per  Lord  Hers- 
chell.  The  jury  must  not  be  restricted  by  a  direction  not 
to  give  such  damages.  De  Vaughn  v.  Heath,  37  Ala.  595. 
The  plaintiff's  5th  prayer  is  in  accord  with  these  principles, 
and  was  therefore  properly  granted.  Wc  cannot,  however, 
avoid  the  conclusion  that  there  was  error  in  the  rejection  of  the 
defendant's  15th  prayer,  which  asked  that  the  jury  be  instructed, 
if  the  defendant  honestly  and  in  good  faith  believed  the  state- 
ments contained  in  the  letters  to  be  true,  and  had  grounds  for 
such  belief  sufficient  to  satisfy  an  ordinarily  prudent  and 
cautions  man  that  such  statements  were  true,  then  the  jury  might 
take  into  consideration  all  the  circumstances  of  the  case,  and, 
in  the  exercise  of  their  discretion,  award  to  the  plaintiff  nominal 


682  PROVINCE  OF  COURT  AND  JURY. 

damages  merely.  This  prayer  is  very  carefully  guarded  by  the 
re<iuirement  to  find  honest  belief  of  the  truth  of  the  charges, 
and  of  reasonable  ground  for  such  belief,  and  in  its  conclusion 
is  substantially  the  converse  of  the  proposition  contained  in  the 
plaintiff's  5th  prayer,  which  we  have  said  was  properly  granted. 
By  the  rejection  of  the  defendant's  15th  prayer  the  jury  were 
practically  told  they  must  give  exemplary  damages,  and  were 
absolutely  refused  the  discretion  to  withhold  them.  But  in  no 
case  has  a  plaintiff  any  legal  right  to  exemplary  damages.  Such 
damages  depend  upon  the  case  and  the  evidence  and  finding  of 
the  jury.  Jerome  v.  Smith,  supra.  Where  there  is  evidence  of 
circumstances  sufficient  to  uphold  a  verdict  for  exemplary  dam- 
ages, the  question  whether  they  shall  be  given  or  not  is  one  for 
the  jury.  Boardman  v.  Goldsmith,  48  Vt.  403.  And  it  is  error 
to  instruct  them  they  must  give  exemplary  damages.  Sedg.  Dam. 
333 ;  Hawk  v.  Kidgway,  33  111.  473.  The  words  used  here  being 
actionable  per  se,  although  there  was  no  proof  of  actual  and  sub- 
stantial damages  sustained  by  the  publications  to  Miss  Willis 
of  the  two  letters,  the  jury  could  not  properly  have  been  de- 
prived of  their  discretion  to  give  exemplary  damages  if  they 
found  malice ;  nor  could  they,  on  the  other  hand,  either  by  the 
granting  of  an  erroneous  instruction  or  the  rejection  of  a  proper 
one,  be  deprived  of  their  discretion  to  refuse  to  award  exemplary 
damages  if  they  found  no  malice.  For  the  error  in  the  rejection 
of  the  defendant's  15th  prayer,  it  will  be  necessary  to  reverse 
the  judgment,  that  a  new  trial  may  be  had.  Judgment  reversed, 
with  costs  to  appellant  above  and  below,  and  new  trial  awarded. 


TATHWELL  v.  CITY  OF  CEDAR  RAPIDS. 

Iowa,  1903.     122  Iowa,  50. 

Action  to  recover  damages  resulting  from  personal  injuries 
received  by  plaintiff  while  driving  in  a  street  of  a  defendant 
city  by  reason  of  his  horse  stepping  into  a  hole  in  the  highway 
in  or  beside  a  culvert,  the  result  being  that  plaintiff  was  thrown 
to  the  ground.  Judgment  for  plaintiff  on  a  former  trial  was 
reversed,  and  a  new  trial  ordered.  114  Iowa,  180.  On  this  trial 
verdict  was  returned  for  the  plaintiff  for  $100  damages,  which, 
on  plaintiff's  motion,  was  set  aside  as  inadequate.  From  this 
ruling  defendant  appeals. 


PROVINCE  OF  COURT  AND  JURY,  683 

McClain,  J.  There  was  a  conflict  in  the  evidence  as  to 
whether  the  street  was  defective  at  the  place  where  plaintiff  was 
injured,  but  the  verdict  of  the  jury  for  the  plaintiff  establishes 
the  existence  of  a  defect  and  the  negligence  of  the  city  with 
ireference  thereto,  and  we  have  for  consideration  only  this  ques- 
tion :  Did  the  trial  judge  err  in  setting  aside  the  verdict  on  the 
ground  that  the  damages  awarded  to  plaintiff  for  the  injury  were 
inadequate?  The  right  of  jury  trial,  as  uniformly  recognized 
under  the  common-law  system,  involves  the  determination  by 
the  jury,  rather  than  by  the  judge,  of  questions  of  fact,  in- 
cluding the  amount  of  damage  to  be  given  where  compensation 
is  for  an  unliquidated  demand.  Nevertheless,  the  trial  courts 
have  exercised  from  early  times  in  the  history  of  the  common  law 
the  power  to  supervise  the  action  of  the  jury,  even  as  to  the 
measure  of  damages,  and  to  award  a  new  trial  where  the 
verdict  is  not  supported  by  the  evidence  and  is  manifestly 
unjust  and  perverse.  And  while  it  is  uniformly  held  that 
the  trial  judge  wull  interfere  with  the  verdict  of  the  jury  as  to 
matters  of  fact  with  reluctance,  and  only  where,  on  the  very 
face  of  the  evidence,  allowing  every  presumption  in  favor  of  the 
correctness  of  the  jury's  action,  it  is  apparent  to  a  reasonable 
mind  that  the  verdict  is  clearly  contrary  to  the  evidence,  yet 
the  power  of  the  judge  to  interfere  in  extreme  cases  is  unques- 
tionable. It  has  sometimes  been  said  that  the  judge  should  not 
interfere  where  the  verdict  is  supported  by  a  scintilla  of  evi- 
dence ;  but  the  scintilla  doctrine  has  been  discarded  in  this  state, 
and  is  not  now  generally  recognized  elsewhere.  Meyer  v,  Houck, 
85  Iowa,  319.  The  general  scope  and  extent  of  the  judge's 
supervisory  power  with  reference  to  the  jury's  verdict  as  to 
questions  of  fact  is  well  illustrated  by  the  very  first  reported  case 
in  which  the  power  appears  to  have  been  exercised — that  of 
Wood  v.  Gunston,  decided  in  1655  by  the  Court  of  King's  Bench 
(or,  as  it  was  called  during  the  commonwealth.  Upper  Bench), 
found  in  Style's  Report,  on  page  466.  The  action  was  upon  the 
case  for  speaking  scandalous  words  against  the  plaintiff,  charg- 
ing him,  among  other  things,  with  being  a  traitor.  The  jury 
gave  plaintiff  one  thousand  five  hundred  pounds  damages,  where- 
upon the  defendant  moved  for  a  new  trial  on  the  ground  that 
the  damages  were  excessive,  and  that  the  jury  had  favored  the 
plaintiff.  In  opposition  to  this  is  was  said  in  argument  that 
after  a  verdict  the  partiality  of  the  jury  ought  not  to  be  ques- 


6S-1  I'KOVINCE  OF  COURT  AND  JURY. 

tioned,  nor  was  there  any  precedent  for  it  ' '  in  our  books  of  the 
hnv. "  and  that  it  would  be  of  dangerous  consequence  if  it  should 
be  permitted,  and  the  greatness  of  the  damages  cannot  be  a  cause 
for  a  new  trial.  But  counsel  for  the  other  party  said  that  the 
verdict  was  a  "packed  business, "  else  there  could  not  have  been  so 
great  damages,  and  that  the  court  had  power  "in  extraordinary 
cases  such  as  this  is  to  grant  a  new  trial."  The  chief  justice 
thereupon  said:  "It  is  in  the  discretion  of  the  court  in  some 
cases  to  grant  a  new  trial,  but  this  must  be  a  judicial,  and  not 
an  arbitrary,  discretion,  and  it  is  frequent  in  our  books  for  the 
court  to  take  notice  of  miscarriages  of  juries,  and  to  grant  new 
trials  upon  them.  And  it  is  for  the  people's  benefit  that  it 
should  be  so,  for  a  jury  may  sometimes,  by  indirect  dealings, 
be  moved  to  side  with  one  party,  and  not  to  be  indifferent  be- 
twixt them,  but  it  cannot  be  so  intended  with  the  court ;  where- 
fore let  there  be  a  new  trial  the  next  term,  and  the  defendant 
shall  pay  full  costs ;  and  judgment  to  be  upon  this  verdict  to  stand 
for  security  to  pay  what  shall  be  recovered  upon  the  next  verdict. " 
This  case  is  especially  interesting  in  connection  with  the  present 
discussion,  because  it  is  one  in  which  the  assessment  of  damages 
was  peculiarly  within  the  province  of  the  jury,  and  because  the 
nature  of  the  supervisory  power  of  the  trial  judge  is  explained 
as  being,  in  effect,  to  set  aside  a  verdict  for  excessive  damages  in 
such  cases  which  seem  to  have  been  the  result  of  passion  and 
prejudice,  and  not  the  deliberate  exercise  of  judgment.  That 
the  practice  of  granting  new  trials  under  such  circumstances 
has  continued  in  all  the  courts  administering  the  common  law 
from  the  time  of  the  case  just  cited  to  the  present  time  is  a  mat- 
ter of  common  knowledge  with  the  profession,  and  citation  of 
authorities  would  be  superfluous.  That  the  power  is  exercised 
to  prevent  miscarriage  of  justice  by  reason  of  the  rendition  of 
a  verdict  by  the  jury  which  is  wholly  unreasonable,  in  view  of 
the  testimony  which  is  given  in  the  presence  of  the  court,  is 
imiversally  conceded. 

But  the  question  with  which  we  are  now  more  particularly 
concerned  is  whether  this  power  of  the  trial  judge  may  be  ex- 
ercised where  the  injustice  consists  in  rendering  a  verdict  for 
too  small  an  amount.  If  the  case  is  one  in  which  the  measure  of 
damages  is  a  question  of  law,  the  court  has,  of  course,  the  same 
power  to  set  aside  a  verdict  for  too  small  an  amount  as  one  which 
is  excessive ;  and  this  is,  in  general,  true  without  question  where 


PROVINCE  OF  COURT  AND  JURY.  685 

the  damages  are  capable  of  exact  computation — that  is,  where 
the  facts  established  by  the  verdict  of  the  jury  show  as  matter 
of  law  how  much  the  recovery  should  be.  In  such  cases  the 
court  may  grant  a  new  trial,  unless  the  defendant  will  consent 
to  a  verdict  for  a  larger  amount,  fixed  by  the  court,  than  that 
found  by  the  jury;  just  as  in  case  of  excessive  damages  under 
.  similar  circumstances  the  court  may  reduce  the  amount  for 
'which  the  verdict  shall  be  allowed  to  stand,  on  penalty  of  set- 
ting it  aside  if  the  successful  party  does  not  agree  to  the  reduc- 
tion. Carr  v.  Miner,  42  111.  179 ;  James  v.  Morey,  44  111.  352. 
It  seems  to  have  been  thought  by  some  courts  that  the  general 
supervisory  power  over  verdicts,  where  the  amount  of  damage 
is  not  capable  of  computation,  and  rests  in  the  sound  discretion 
of  the  jury,  should  not  be  exercised  where  the  verdict  is  for  too 
smaU  an  amount;  at  least  not  with  the  same  freedom  as  in 
cases  where  it  is  excessive.  Barker  v.  Dixie,  2  Strange,  1051; 
Pritchard  v.  Hewitt,  91  Mo.  547;  Martin  v.  Atkinson,  7  Ga. 
228.  No  such  limitation  on  the  supervisory  power  of  the  trial 
judge  has  been  definitely  established,  and  by  the  great  weight 
of  authority,  both  in  England  and  America,  the  power  to  set 
aside  the  verdict,  when  manifestly  inconsistent  with  the  evi- 
dence, and  the  result  of  a  misconception  by  the  jury  of  their 
powers  and  duties,  is  as  fully  recognized  where  the  verdict  is 
inadequate  as  where  it  is  excessive;  and  ample  illustration  of 
the  exercise  of  this  power  is  found  in  actions  to  recover  dam- 
ages for  personal  injuries  or  injury  to  the  reputation,  although 
in  such  cases  the  amount  of  damage  is  peculiarly  within  the 
jury's  discretion.  Phillips  v.  London  &  S.  W.  R.  Co.,  5  Q.  B. 
D.  781 ;  Robinson  v.  Town  of  Waupaca,  77  Wis.  544 ;  Whitney 
V.  Milwaukee,  65  Wis.  409 ;  Caldwell  v.  Vicksburg,  S.  &  P.  R.  Co., 
41  La.  Ann.  624;  Benton  v.  Collins,  125  N.  C.  83;  McNeil  v. 
Lyons,  20  R.  I.  672;  Lee  v.  Publishers,  George  Knapp  &  Co., 
137  Mo.  385;  McDonald  v.  Walter,  40  N.  Y.  551;  Carter  v. 
Wells,  Fargo  &  Co.  (C.  C.)  64  Fed.  1007.  *  *  *  We  do 
not  hold  that  the  trial  judge  may  substitute  his  judgment  of  the 
credibility  of  the  witness  in  place  of  the  judgment  Vrhich  the 
jury  has  exercised,  but  we  do  say  that  the  trial  judge  may,  if 
he  finds  that  the  jury  have  failed  to  allow  the  amount  of  dam- 
ages shoA\Ti  by  uncontradicted  testimony,  set  aside  the  verdict 
as  in  conflict  with  the  evidence  and  award  a  new  trial. 


686  PROVINCE  OF  COURT  AND  JURY. 

The  ruling  of  the  lower  court  was  therefore  correct,  and  it  is 
affirmed. 


CHICAGO  CITY  RY.  CO.  v.  GEMMILL. 

Illinois,   1904.     209  111.  638. 

Hand,  C.  J.  This  was  an  action  on  the  case,  commenced  in  the 
circuit  court  of  Cook  county  by  Michael  Sheehan  against  the  ap- 
pellant to  recover  damages  for  a  personal  injury  alleged  to 
have  been  sustained  by  him  through  the  negligence  of  the  ap- 
pellant. The  declaration  contained  four  counts.  The  plea  of 
not  guilty  was  filed.  A  trial  resulted  in  a  verdict  for  the  sum 
of  $12,500,  and,  a  motion  for  a  new  trial  having  been  interposed, 
the  trial  court  required  the  plaintiff  to  remit  the  sum  of  $6,500, 
otherwise  the  motion  for  a  new  trial  would  be  granted,  where- 
upon the  plaintiff  entered  a  remittitur  for  that  amount,  and 
the  motion  for  a  new  trial  was  overruled,  and  judgment  ren- 
dered on  the  verdict  for  $6,000.  The  appellant  prosecuted  an 
appeal  to  the  Appellate  Court  for  the  First  District,  where  the 
judgment  was  affirmed,  and  a  further  appeal  has  been  prosecuted 
to  this  court. 

During  the  pendency  of  the  appeal  in  the  Appellate  Court 
Michael  Sheehan  died,  and  Howard  S.  Gemmill,  his  adminis- 
trator, was  substituted  as  appellee,  and  appears  in  that  capacity 
in  this  court. 

At  the  close  of  the  plaintiff's  evidence,  and  again  at  the  close 
of  all  the  evidence,  the  defendant  moved  the  court  to  peremp- 
torily instruct  the  jury  to  return  a  verdict  in  favor  of  the  de- 
fendant, whioh  the  court  declined  to  do,  and  the  action  of  the 
court  in  that  regard  has  been  assigned  as  error.  It  appeared 
from  the  uncontradicted  evidence  that  Michael  Sheehan,  who 
was  at  the  time  of  the  injury  in  the  employ  of  the  Chicago  House- 
wrecking  Company  as  a  team-ster,  was  driving  a  horse  hitched 
to  a  loaded  wagon  upon  Thirty-Fifth  street,  which  runs  east 
and  west,  in  the  city  of  Chicago;  that  the  wrecking  company's 
place  of  business  and  yards  are  located  on  the  southwest  corner 
of  Iron  and  Thirty-Fifth  streets,  the  entrance  thereto  being  on 
Thirty-Fifth  street,  about  225  feet  west  of  Iron  street ;  that  the 
appellant  operated  a  double-track  electric  street  railway  on 
Thirty-Fifth  street,  its  west-bound  cars  running  upon  the  north 


PROVINCE  OF  COURT  AND  JURY.  687, 

track  and  its  east-bound  cars  running  upon  the  south  track; 
that  as  Sheehan  approached  the  entrance  to  the  yards  of  the 
wrecking  company  from  the  east,  it  being  after  6  o'clock,  he  dis- 
covered the  gate  was  closed.  He  stopped  the  horse  on  the  north 
side  of  the  street,  immediately  in  front  of  the  entrance,  got 
down  from  the  wagon,  went  across  the  street  to  the  gate,  and 
notified  the  watchman  to  open  it,  which  the  watchman  did.  He 
then  went  back,  got  upon  the  wagon,  and  started  to  drive  across 
the  street  into  the  wrecking  company's  yard.  A  car  of  ap- 
pellant was  approaching  from  the  west  upon  the  south  track. 
As  Sheehan  drove  upon  that  track  the  car  struck  the  wagon,  and 
knocked  the  horse  down,  and  threw  Sheehan  off  upon  the 
ground,  from  which  fall  his  hip  was  crushed  and  he  was  other- 
wise injured.  At  the  time  of  the  injury  it  was  daylight;  the 
track  was  dry;  and  the  view  up  and  down  Thirty-Fifth  street, 
at  the  place  of  the  injury,  for  a  considerable  distance  was  un- 
obstructed. The  evidence  was  conflicting  as  to  the  rate  of  speed 
at  which  the  car  was  running  and  its  distance  west  of  the  en- 
trance to  the  wrecking  company's  yards  when  Sheehan  started 
to  cross  the  tracks ;  also  as  to  whether  the  gong  was  sounded  by 
the  motorman,  or  Sheehan  looked  in  the  direction  of  the  ap- 
proaching car.  Sheehan  testified  the  car  was  300  feet  or  more 
west  of  the  entrance  to  the  yards  of  the  wrecking  company  when 
he  started  to  drive  across  the  tracks;  that  from  the  position  he 
was  in  on  the  load  he  could  not  judge  accurately  as  to  the  rate 
of  speed  at  which  the  car  approached  the  wagon ;  that  when  he 
drove  upon  the  tracks  the  car  was  150  feet  or  more  west  of  hiip, 
and  that  it  struck  the  rear  part  of  the  wagon.  Other  witnesses 
testified  the  car  was  running  at  a  high  rate  of  speed,  that  the 
wagon  was  badly  broken,  and  that  some  of  the  windows  in  the 
car  were  knocked  out  at  the  time  of  the  collision.     *     *     * 

It  is  assigned  as  error  that  the  court  improperly  gave  to  the 
jury  the  following  instruction:  "The  jury  are  instructed  that 
if  you  find  for  the  plaintiff  in  this  case  you  will  be  required  to 
determine  the  amount  of  his  damages,  and  in  determining  the 
amount  of  damages  the  plaintiff  is  entitled  to  recover  in  this 
case,  if  any,  the  jury  have  a  right  to,  and  they  should  take  into 
consideration  all  the  facts  and  circumstances  in  evidence  before 
them,  and  the  nature  and  extent  of  plaintiff's  physical  injuries, 
if  any,  testified  about  in  this  case,  so  far  as  shown  by  the  evi- 
dence ;  his  suffering  in  body  and  in  mind,  if  any,  resulting  from 


688  PROVINCE  OF  COURT  AND  JURY. 

such  injuries;  and  such  future  suffering  and  loss  of  health,  if 
any,  as  the  jury  may  believe,  from  the  evidence  before  them  in 
this  case,  he  will  sustain  by  reason  of  such  injuries."  The 
criticism  made  upon  the  instruction  is  that  it  informs  the  jury 
that  in  determining  the  amount  of  damages  that  the  plaintiff  is 
entitled  to  recover,  if  any,  they  have  a  right  to  and  should  take 
into  consideration  all  the  facts  and  circumstances  in  evidence 
laefore  them.  While  the  instruction  would  have  been  more  ac- 
curate had  it  limited  the  jury  to  the  consideration  of  the  facts 
and  circumstances  attending  the  injury,  as  was  done  in  the 
case  of  Gartside  Coal  Co.  v.  Turk,  147  111.  120,  we  are  of  the 
opinion  the  jury  were  not  misled  by  the  instruction.  An  in- 
struction in  substantially  the  above  form  was  approved  by  this 
court  in  Hannibal  &  St.  Joseph  Railroad  Co.  v.  Martin,  111 
111.  219;  West  Chicago  Street  Railroad  Co.  v.  Carr,  170  111. 
478,  West  Chicago  Street  Railroad  Co.  v.  Johnson,  180  111.  285 ; 
Cicero  &  Proviso  Street  Railway  Co.  v.  Brown,  193  111.  274 ;  and 
Chicago  Terminal  Transfer  Railroad  Co.  v.  Gruss,  200  111.  195. 
The  giving  of  the  instruction  was  not  prejudicial  error.    *    *    * 

It  is  further  assigned  as  error  that  the  court  erred  in  enter- 
ing judgment  on  the  verdict  for  $6,000,  the  amount  remaining 
after  the  remittitur  was  entered.  In  Loewenthal  v.  Streng,  90 
111.  74,  which  was  an  action  on  the  case  for  malicious  prosecution, 
a  verdict  was  rendered  for  $10,000.  A  remittitur  of  $4,000 
was  entered,  and  a  judgment  was  then  rendered  on  the  verdict 
for  $6,000.  It  was  there  said  that  where  a  verdict  is  so  fla- 
grantly excessive  as  to  be  only  accounted  for  on  the  ground  of 
prejudice,  passion  or  misconception,  a  remittitur  will  not  cure 
the  verdict.  When  that  case  was  decided,  this  court  in  that  class 
of  cases  reviewed  questions  of  fact  as  well  as  of  law,  which  is 
not  the  case  since  the  organization  of  the  Appellate  Courts.  In 
the  case  of  North  Chicago  Street  Railroad  Co.  v.  Wrixon,  150 
111.  532,  after  an  exhaustive  review  of  the  authorities  in  this 
state,  it  was  said  (page  535, 150  111.)  :  "We  are  committed  to  the 
practice  of  allowing  remittiturs  in  actions  ex  delicto,  both  in  the 
trial  and  appellate  courts,  to  such  sum  as  shall  to  the  court 
seem  not  excessive,  and  affirming  as  to  the  balance  of  the  judg- 
ment;" and  the  practice  therein  referred  to  is  now  too  well  es- 
tablished to  be  questioned.  West  Chicago  Street  Railroad  Co. 
V.  Musa,  180  111.  130;  Chicago  &  Alton  Railroad  Co.  v.  Lewan- 
dowski,  190  111.  301.    In  the  Musa  Case  it  was  held  it  was  the 


PROVINCE  OF  COURT  AND  JLRY.  689 

province  of  the  Appellate  Court  to  determine  whether,  in  view 
of  all  the  facts  of  the  case,  the  damages  were  excessive,  and  if, 
in  the  view  of  that  court,  they  were,  the  error  might  be  cured  by 
a  remittitur  in  that  court ;  and  that  the  judgment  of  the  Appel- 
late Court  in  that  regard,  being  upon  a  question  of  fact,  v\"ould 
be  binding  upon  this  court. 

Finding  no  reversible  error  in  this  record,  the  judgment  of 
the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


SOUTHERN  PACIFIC  CO.  v.  FITCHETT. 

Arizona,  1905.     9  Ariz.  128. 

Action  by  railroad  passenger  for  damages. 
The  jury  returned  the  following  verdict  against  the  appellant : 
"We,  the  jury  duly  impaneled  and  sworn  in  the  above-en- 
titled action,  upon  our  oaths  do  find  for  the  plaintiff,  and  as- 
sess his  damages  at : 

$48  20,  railroad  ticket. 
22  00,  expenses  in  Tucson. 
1,000  00,  injured  feelings. 


$1,070  20 

"C.  M.  Zander,  Foreman." 

It  was  the  expressed  view  of  the  trial  court  that  the  award 
by  the  jury  of  $1,000  for  the  injury  to  the  feelings  of  the  ap- 
pellee was  clearly  in  excess  of  what  was  just  and  proper  as  a 
money  compensation  therefor.  It  must  also  have  appeared  to 
the  court,  as  it  conclusively  does  to  us,  that  this  verdict,  so  dis- 
proportionate to  the  injury  proved,  was  not  the  result  of  cool 
and  dispassionate  consideration  of  the  jury.  Under  these  cir- 
cumstances, did  the  court  have  the  power,  against  the  objection 
of  either  party,  to  render  judgment  for  the  balance  of  the  ver- 
dict, after  remitting  therefrom  the  part  which  it  deemed  exces- 
sive? Upon  this  question  there  is  an  apparent  conflict  in  the 
authorities,  attributable  in  some  measure  to  the  varying  pro- 
visions of  the  local  Codes.  There  are  actions,  the  subject  of 
which  has  a  contract,  commercial,  or  other  established  standard 
of  valuation,  where  the  amount  of  the  verdict,  when  the  facts 


690  PROVINCE  OF  COURT  AND  JURY. 

are  shown,  becomes  generally  mere  matter  of  computation.  It 
seems  to  be  well  settled  that  in  this  class  of  actions  any  excess 
in  the  verdict  above  what  the  evidence  satisfactorily  establishes 
may,  with  the  assent  of  the  party  in  whose  favor  it  is  rendered, 
be  eliminated  by  remittitur,  and  judgment  entered  for  the 
residue.  "The  exercise  of  such  power,"  it  has  been  said,  "is 
sanctioned  on  the  theory  that  the  excess  arises  from  misappre- 
hension of  the  law  or  the  facts,  or  error  in  computation,  not 
necessarily  permeating  and  vitiating  the  entire  verdict,  and 
which  it  is  competent  to  correct,  with  the  assent  of  the  party 
whom  alone  the  correction  could  prejudice,  by  striking  there- 
from any  distinct  item,  or  excess  in  the  computation  of  its 
value,  appearing  to  be  unsupported  by  the  evidence."  The  rule 
is  a  salutary  one,  and,  when  employed  with  discretion,  ter- 
minates litigation  while  promoting  justice.  But  in  that  class 
of  actions  in  which  the  opinion  of  the  jury,  unaided  by  any 
known  standard  of  valuation,  determines  the  magnitude  of  the 
recovery,  the  power  of  the  court  over  an  excessive  verdict  is 
considered  by  many  authorities  to  be  quite  different.  Although 
the  verdict,  if  purged  of  any  supposed  excess,  might,  in  the 
opinion  of  the  court,  be  well  sustained  as  to  the  residue  by  the 
facts  disclosed,  yet  the  manifest  presence  and  influence  of  pas- 
sion, prejudice,  or  partiality  in  producing  the  excess  vitiates 
the  verdict  in  toto,  and,  according  to  these  authorities,  excludes 
the  power  of  the  court  to  validate  or  save  any  part  of  it  against 
the  consent  of  either  party.  It  was  a  theory  of  the  common 
law  that  the  money  value  of  personal  wrongs  which  could  have 
no  certain  standard  of  measurement  should  not  be  committed 
to  the  arbitrament  of  a  single  mind,  but  should  be  measured 
by  the  average  of  impartial  opinion,  of  which  the  concurrence  of 
12  minds,  uninfluenced  by  passion,  resentment,  or  corruption, 
would  be  a  fair  expression.  "It  is  the  peculiar  province  of  the 
jury,"  observes  a  noted  law  writer,  "to  decide  such  cases  under 
appropriate  instructions  from  the  court,  and  the  law  does  not 
recognize  in  the  latter  the  power  to  substitute  its  own  judgment 
for  that  of  the  jury.  Although  the  verdict  may  be  considerably 
more  or  less  than,  in  the  judgment  of  the  court,  it  ought  to  have 
been,  still  it  will  decline  to  interfere,  unless  the  amount  is  so 
great  or  small  as  to  indicate  that  the  jury  must  have  found  it 
while  under  the  influence  of  passion,  prejudice,  or  gross  mistake, 
or,  in  other  words,  that  it  is  the  result  of  accident  or  perverted 


PROVINCE  OF  COURT  AND  JURY.  691 

judgment,  and  not  of  cool  and  impartial  deliberation.  When 
the  verdict  is  thus  excessive  or  deficient,  the  trial  court,  in  its 
discretion,  will  interpose  and  set  it  aside."  2  Suth.  Dam.  (3d 
Ed.)  §  459.  But  when  a  verdict  is  tainted  by  the  presence  of 
any  such  infirmities,  is  it  safe  to  permit  any  portion  of  it  to 
stand  as  the  basis  of  a  judgment?  If  recklessness  has  con- 
trolled in  measuring  the  extent,  may  it  not  be  probable  that  it 
also  controlled  in  determining  the  right  of  recovery  ?  In  South- 
ern Pac.  Co.  V.  Tomlinson,  4  Ariz.  126,  33  Pac.  710,  this  court, 
speaking  through  Mr.  Justice  Sloan,  said:  "A  trial  court  has 
the  power,  where  excessive  damages  have  been  allowed  by  the 
jury,  and  where  the  motion  to  set  aside  the  verdict  is  based  upon 
this  ground,  to  make  a  remission  a  condition  precedent  to  over- 
ruling the  motion.  *  *  *  Qf  course,  if  it  is  apparent  to  the 
trial  court  that  the  verdict  was  the  result  of  passion  or  prejudice, 
a  remittitur  should  not  be  allowed,  but  the  verdict  should  be  set 
aside.  In  passing  upon  this  question  the  court  should  not  look 
alone  to  the  amount  of  the  damages  awarded,  but  to  the  whole 
case."  The  case  which  evoked  the  foregoing  expression  was  an 
action  based  upon  injuries  resulting  in  death.  It  is  therefore 
readily  distinguishable  from  the  case  as  bar,  in  the  point  that 
the  damages  therein  were  susceptible  of  accurate  computation 
from  the  evidence.  The  Supreme  Court  of  Georgia  holds  that, 
in  suits  to  recover  for  personal  injuries,  it  is  not  competent  for 
the  trial  court  to  say  that  the  verdict  shall  stand  for  any  definite 
sum  less  than  it  designates,  as  a  condition  for  refusing  a  new 
trial.  Railway  Co.  v.  Harper,  70  Ga.  119.  The  rule  in  that 
state  is  that,  where  general  damages  have  been  recovered  for  a 
personal  tort,  if  they  be  so  excessive  as  to  lead  the  court  to  sus- 
pect bias  or  prejudice,  the  judge  has  no  power  to  require  a  por- 
tion of  the  damages  written  off,  and  thereupon  refuse  a  new 
trial ;  but  it  is  otherwise  where  the  damages  claimed  are  special, 
and  from  the  testimony  can  with  accuracy  be  computed  in  dol- 
lars and  cents,  as  in  cases  of  tortious  homicides.  Railway  Co. ' 
V.  Godkin,  104  Ga.  655.  In  Kentucky  the  trial  court  cannot,  in 
an  action  to  recover  for  personal  injuries,  require  the  plaintiff, 
in  order  to  avoid  a  new  trial,  to  accept  a  judgment  for  less  than 
the  verdict  awards ;  and,  if  such  judgment  is  acepted  under  pro- 
test, it  will  be  reversed  either  upon  the  defendant's  appeal  or 
upon  cross-appeal.  Railway  Co.  v.  Earl's  Adm'r,  94  Ky.  368. 
The  Texas  courts  denied  the  power  to  require  a  remittitur  in  ac- 


692  PROVINCE  OP  COURT  AND  JURY. 

tions  to  recover  damages  for  torts,  but  the  rule  has  been  changed 
by  statute.  Railway  Co.  v.  Syfan,  91  Tex.  562.  The  same  view 
of  the  main  question  seems  to  be  favored  in  West  Virginia. 
Vinal  v.  Core,  18  W.  Va.  1 ;  Unfried  v.  Railroad  Co.,  34  W.  Va. 
260.  It  is  also  indorsed  in  Arkansas,  Railway  Co.  v.  Hall,  53 
Ark.  7.  This  is  also  the  view  in  Missouri  as  to  the  Supreme 
Court,  but  not  as  to  the  trial  courts.  In  Gurley  v.  Railway  Co., 
104  Mo.  211,  it  was  said  by  the  former  court:  "Whenever  the 
verdict  does  not,  upon  its  face,  appear  to  be  the  result  of  passion 
or  prejudice,  it  is  wholly  within  the  province  of  the  jury;  but, 
when  it  does  so  appear,  then  it  ought  to  be  set  aside.  We  have 
no  scales  by  which  we  can  determine  what  portion  is  just,  and 
the  result  of  reason,  based  upon  the  evidence,  and  what  part 
is  poisoned  with  prejudice  and  passion.  We  do  not  think  it 
within  our  province  to  assess  the  damages.  When  we  set  aside 
any  part  of  the  verdict,  we  destroy  its  integrity,  and  we  have 
no  right  to  set  ourselves  up  as  triers  of  facts,  and  render  another 
and  a  different  verdict.  We  think  the  only  logical  course  in 
such  cases  is  to  let  the  verdict  stand  or  set  it  aside  as  an  entirety." 
The  Supreme  Court  of  Colorado  had  this  subject  under  discus- 
sion in  a  recent  and  w^ell-considered  case,  in  which  the  authori- 
ties were  reviewed,  and  an  attempt  made  to  distinguish  and  har- 
monize them.  The  conclusion  there  reached  was  that  in  an 
action  for  personal  injuries,  where  the  verdict  was  excessive, 
and  apparently  the  result  of  passion,  or  prejudice,  the  trial  court 
could  not  order  a  remittitur  of  the  excessive  part  and  give  judg- 
ment for  the  residue,  but  must  grant  a  new  trial,  Davis  Iron- 
works Co.  v.  White  (Colo.  Sup.)  71  Pac.  384.  The  Supreme 
Court  of  the  United  States,  speaking  through  Mr.  Justice  White, 
in  Hansen  v.  Boyd,  161  U.  S.  397,  said:  "The  rule  has  been 
adopted  by  this  court  that  it  is  proper  either  for  the  trial  court 
upon  an  application  for  a  new  trial,  or  for  an  appellate  court  in 
reviewing  a  judgment,  to  permit  the  party  in  whose  favor  a 
verdict  or  judgment  has  been  returned  or  entered  to  avoid  the 
granting  of  a  new  trial  on  account  of  error  affecting  only  a  part 
thereof,  by  entering  a  remittitur  as  to  such  erroneous  part,  when 
the  court  can  clearly  distinguish  and  separate  the  same."  The 
practice  of  ordering  a  remittitur  within  the  limits  of  the  last- 
mentioned  rule  involves  no  departure  from  sound  principle,  and 
is  expressly  sanctioned  by  our  Code.  Paragraphs  1450,  1455, 
Rev.  St.  1901.    Authorities  are  also  to  be  found  which  will  sup- 


PROVINCE  OP  COURT  AND  JURY.  693 

port  the  practice  in  both  appellate  and  trial  courts  of  reducing 
judgments  and  verdicts,  even  in  those  cases  where  no  standard 
of  measurement  exists,  and  although  it  be  apparent  that  the 
jury's  excessive  finding  must  have  been  influenced  by  passion, 
prejudice,  or  a  perverse  disregard  of  justice,  but  we  are  dis- 
posed to  question  their  soundness  in  principle. 

In  the  case  at  bar  the  trial  court  was  of  the  opinion  that  more 
than  half  of  the  damages  awarded  for  the  appellee's  "injured 
feelings"  were  excessive.  It  was  impossible  to  tell  how  the  jury 
made  up  their  verdict,  but  it  was  evidently  not  the  result  of  cool 
and  dispassionate  consideration.  Under  these  circumstances, 
we  think  it  was  not  the  province  of  the  court  to  substitute  its 
own  estimate  of  the  damages  for  that  which  it  had  rejected,  but 
that  the  question  of  the  proper  sum  to  be  awarded,  was  one  of 
fact,  which  should  have  been  submitted  to  the  determination  of 
another  jury.  We  are  the  more  readily  led  to  this  view  when 
we  consider  that  the  language  of  our  Code  is  that  "in  all  cases, 
both  at  law  and  in  equity,  either  party  shall  have  the  right  to 
submit  all  issues  of  fact  to  a  jury."  Paragraph  1398,  Id.  What- 
ever may  be  the  effect  of  this  provision  as  to  equity  cases,  it 
was  the  manifest  intention  of  the  Legislature  to  enact  as  strongly 
as  w^ords  could  express  its  will  in  favor  of  the  right  to  have  ques- 
tions of  fact  left  to  the  determination  of  the  jury. 

Other  errors  are  assigned  by  the  appellant,  but,  as  the  case 
will  have  to  be  reversed  because  of  the  action  of  the  court  with 
respect  to  the  remittitur,  and  the  other  questions  presented  may 
not  arise  upon  another  trial,  we  deem  it  unnecessary  to  discuss 
them. 

The  judgment  and  order  appealed  from  will  be  reversed,  and 
the  cause  remanded  to  the  district  court  for  a  new  trial. 

Sloan  and  Doan,  JJ.,  concur. 

The  jndKe  should  charjre  the  jury  as  to  the  true  measure  of  damages. 
"The  rule  by  which  damages  are  to  be  established  is  a  question  of  law 
to  be  decided  by  the  court.  The  extent  of  damages  sustained  as  the 
consequence  of  defendant's  act  is  within  the  province  of  the  jury." 
B.  &  O.  R.  R.  V.  Carr.  71  Md.  IS.'i. 

Where  the  court  deems  excessive  a  verdict  for  damages  which  are 
in  their  nature  incapable  of  exact  ascertainment,  as  for  injured  feelings, 
and  is  satisfied  that  the  verdict  was  due  to  passion  and  prejudice,  it 
is  not  for  the  court  to  substitute  its  own  estimate  of  the  damages  for 
that  which  it  had  rejected  by  ordering  a  remittitur.  The  Southern 
Pacific  Co.  V.  Fitchett,  9  Ariz.  125. 


til)4  PROVINCE  OP  COURT  AND  JURY, 

In  an  action  of  libel  the  amount  of  damase  is  peculiarly  within 
the  province  of  the  jury.  When  in  their  judgment  tlie  defendant  was 
incited  by  actual  malice  or  acted  wantonly  or  recklessly,  they  may 
give  exemplary  dumases.     Holmes  v.  Jones,  147  N.  Y.  59. 

It  is  within  the  province  of  the  jury,  in  a  case  of  personal  injuries, 
to  award  such  damages  as  they  think  proper,  considering  the  perma- 
nent injury,  the  resulting  disability,  the  time  lost  and  mental  suffering 
endured.    Atoka  C.  &  M.  Co.  v.  Miller,  7  lud.  Ter.  Hep.  106. 


INDEX. 


[The  references  are  to  the  pages.] 

ABUSIVE  TREATMENT  OF  PASSENGER,  403. 
ACTION,  when  to  begin,  312. 

when  it  survives,  433. 
ACT  OF  GOD,  416,  417,  418,  419. 
ACTUAL  VALUE,  291,  476. 
damages,  121,  575. 
loss,  359. 
ADAPTABILITY  OF  LAND,  660. 
ADVERTISING,  contract  for,  85,  357,  381. 
AFFRAY,  631. 

AGE,  an  element  of  damage,  425. 
AGGRAVATION  OF  DAMAGES— 

where  agent  has  improper  motive,  140. 
in  case  of  seduction,  549. 
in  breach  of  promise  of  marriage,  560. 
where  breach  is  aggravated  by  seduction,  561. 
where  unchastity  is  charged,  663. 
in  case  of  mental  anguish,  121. 
AGGRAVATION  OF  DISEASE,  120. 
AGREEMENT,  to  devise,  230. 

to  sell,  258. 
ALTERNATIVE  TO  DO  OR  PAY,  181. 
ANIMALS,  ferocious  dog,  42. 
damage  done  by,  462. 
right  to  be  in  highway,  463. 
ANNOYANCE,  388. 
ANNUITY,  cost  of,  100. 

ANTENUPTIAL  AGREEMENT  TO  DEVISE,  230. 
ANTICIPATED  PROFITS,  230. 
ANTICIPATORY  BREACH.  272.  .308.  321. 
APPRENTICESHIP,  indentures  of,  39. 
ARCHITECT,  plans  of.  25. 
ASSAULT  AND  BATTERY— 

where  plaintiff's  skull  is  broken.  .506. 

where  brought  on  by  insulting  words.  .50. 

where  plaintiff  is  e.iected  from  dance  hall,  1.33. 

when  exemplary  damages  may  be  recovered,  95. 

when  damages  are  inadequate,  140. 

where  gun  is  pointed  in  a  threatening  manner,  507. 

695 


696  INDEX. 

[The  references  are  to  the  pages.} 
ASSAULT  AND  BATTERY— Continued. 

when  "smart  money"  is  allowed,  510. 

death  hastened  by  assault,  G32. 

with  immoral  solicitation,  512. 

where  made  in  heat  of  passion,  512. 

with  verbal  provocation,  512,  632. 

no  recovery  for  fright,  512. 

invading  bed-room  to  present  bill,  512. 
ASSESSMENT  OF  DAMAGES,  53,  240,  477. 
ATTACHMENT,  wrongful,  205,  482. 
ATTORNEY  AT  LAW,  value  of  services,  221,  389. 

average  earnings,  390. 

negligence  of,  410. 
AUTOMOBILE,  negligent  driving,  51. 

sale  of,  297. 

collision,  414. 

conversion,  491. 
AVOIDABLE  DAMAGES— 

plaintiff  should  seek  new  employment,  29. 

vendor  on  breach  should  resell,  307. 

on  countermand  plaintiff  to  stop  work,  27,  338. 

plaintiff  must  keep  liability  small,  255. 

plaintiff  must  mitigate  defendant's  loss,  642. 

plaintiff  must  minimize  his  losses,  33,  642. 
BAD  TITLE,  245. 
BAILMENT,  253,  353. 
BENEFICIAL  IMPROVEMENTS,  247. 
BOARD  AND  LODGING,  contract  for,  404. 
BONDS,  non-delivery,  360. 
BREACH  OF  COVENANT,  38. 

BREACH  OF  PROMISE  OF  MARRIAGE,  .5.56,  559,  561,  662. 
BREACH  OF  WARRANTY,  243,  292.  277,  359. 

by  vendor  of  horse,  280. 
BRIDGE,  defective,  101. 

neglect  to  repair,  203. 
BUILDING  CONTRACT,  355. 
CANCELLATION  OF  CONTRACT,  358. 
CAPITAL  AND  EARNINGS,  413. 
CARLISLE  TABLES,  37,  80,  .585. 
CAVEAT  EMPTOR,  278.  .538. 
CERTAINTY— See  Speculative  Damages,  34,  228. 
CHARACTER,  general  bad,  515. 
CHASTITY,  566. 
CIPHER  MESSAGE,  .568. 
CIVIL  DAMAGE  ACT,  582,  586,  .589. 
CIVIL  LAW,  648. 


INDEX.  697 

[The  references  are  to  the  pages.] 

COAL,  contract  to  supply  steam,  2S4. 

mixed  and  carried  away  by  mistake,  465. 
COLLATERAL  ISSUE,  670. 
COMMISSIONS  OF  SALESMAN,  81. 
COMMON  CARRIER— 

liability  for  delay,  165,  256,  389. 

breach  of  contract  to  transport  passenger,  381,  387,  59,  148,  529,  534. 

insulting  language,  148,  391. 

breach  of  contract  to  transport  personalty,  360. 

COMPENSATION — principle  upon  which  damages  are  assessed,  194,  120. 

in  excess  of  injury,  467. 

expense  an  element,  90. 

mitigation  an  element,  358. 

good-will,  when  element,  293. 

shortening  of  life,  408. 
COMPENSATORY  DAMAGES— 

in  case  of  conversion,  34. 

contract  to  support  one  for  life,  37. 

nuisance  from  noise  of  locomotive,  40. 

subsidence  of  ground  through  mining,  41. 

damages  defined  and  distinguished,  135. 

where  insulting  language  was  used,  400.  ^ 

where  horses  are  seized  in  attachment,  484. 

where  conductor  used  vile  language,  149. 

where  lawyer  detained  by  railroad,  389. 

where  libel  is  published  negligently,  521. 

where  customer  of  department  store  is  arrested,  529. 
CONDEMNATION  OF  LAND,  455. 
CONDITIONAL  SALE  OF  GOODS,  259. 
CONSEQUENCES,  remote,  217. 
CONSIDERATION,  failure  of,  295. 
CONSORTIUM,  loss  of,  512,  555. 
CONSPIRACY  OF  TRADE  UNION,  62. 

to  raise  price,  602. 
CONSTRUCTIVE  SERVICE,  377.  367.  369. 
CONTINGENT  DAMAGES,  70,  81,  77,  221,  228,  666. 
CONTINUING  TRESPASS,  187,  498,  499. 
CONTRACT,  BREACH  OF— 

to  furnish  opera  house,  91. 

to  cut  logs,  29.  - 

for  admission  to  dance,  133. 

to  furnish  public  school,  176. 

to  build  store,  160. 

to  build  warships,  166. 

for  work,  labor  and  services,  360,  150,  174,  154,  164,  876,  353,  355,  364. 

to  pay  wages.  377. 

by  vendee  of  goods,  84,  310. 


698  INDEX. 

(The  references  are  to  the  pages.] 
CONTRACT— BREACH   OF— Continued. 

by  vendor  of  goods,  208,  2(52,  271,  2GG,  360. 

by  common  carrier,  210,  25(5. 

by  common  carrier  to  transport  shaft,  202. 

to  sell  real  estate,  229,  238. 

to  devise  land.  230,  233. 

executory  contract,  241,  300,  474. 

by  vendee  of  manikin,  251. 

to  publish  advertisement,  85,  357. 

to  pay  actor,  374. 

to  maiie  a  loan,  616. 

anticipatory,  275,  321. 

to  build  grandstand,  156. 
CONTRACT  BY  WILL,  231,  233. 
CONTRACT  PRICE— 

when  vendor  fails  to  perform,  71,  276. 

on  tender  of  brick  made  to  order,  311. 

on  refusal  of  vendee  to  accept,  312,  339,  344. 

defect  in  vendor's  title,  241. 

where  purchaser  repudiates,  314. 
CON\^ERSION— 

where  business  is  broken  up,  34. 

by  inadvertent  trespasser,  480. 

where  value  fluctuates,  625. 

duty  of  warehouseman,  221. 

in  case  of  coal  mined  innocently,  465,  488. 

where  title  to  growing  wool  passes,  468. 

where  family  pictures  have  peculiar  value,  475. 

where  household  furniture  has  sentimental  value,  477. 

where  horses  are  attached  on  train,  482. 

in  case  of  fluctuating  stock,  475. 

the  highest  intermediate  value,  488,  628. 

where  stock  converted  fluctuates,  475,  488. 

where  business  is  destroyed  through  receivership,  488. 
CORNER  IN  MARKET,  608. 
CORPORATION,  liability  of,  130. 
COST  OF  PRODUCTION,  348. 

of  performance,  322. 

to  replace.  478. 

of  transportation,  265. 

of  repairs,  219. 

of  removal  of  nuisance,  506. 
COSTS  OF  COURT,  250,  650,  653. 

of  eviction,  244. 
COULTAS  CASE,  doctrine  of,  102. 
COUNSEL  FEES,  250,  648,  6.54. 


1 


INDEX.  699 


[The  references  are  to  the  pages.] 

COUNTERMAND,  effect  of,  2S,  338. 
COURT,  prbvince  of,  549,  561,  685,  689,  693. 
COVENANT,  breach  of,  38. 

in  lease,  182. 

against  incumbrances,  238. 

of  title,  243. 

of  seizin,  250. 
CREDIT,  impairment  of,  296,  206. 
CRIMINAL  CONVERSATION,  548,  550,  553,  555. 
CROPS,  injury  to,  655, 
CUTTING  LOGS,  29. 
DAMNUM  ABSQUE  INJURIA,  2,  11,  18. 
DEAD  BODY,  dissection  of,  103. 
DEATH  BY  NEGLIGENCE— 

where  girl  was  killed  at  railway  crossing,  423. 

pecuniary  advantage  of  next  of  kin,  429. 

pecuniary  loss  of  relations,  442. 

mere  loss  of  life  alone,  444. 

monetary  value  of  services,  449. 

photograph  of  deceased  as  evidence,  449. 

recovery  of  collateral  kinsman,  450. 

where  plaintiff  has  been  married  second  time,  450. 

support  received  from  female  child,  451. 

death  of  a  small  boy,  451. 

where  plaintiff  must  support  crippled  child,  451. 

feelings  of  widow  and  her  poverty  not  considered,  450. 

no  award  for  mere  loss  of  society,  451. 

cost  of  maintaining  wife  to  be  deducted,  450. 

damages  to  be  unaffected  by  sentiment,  451. 

age  and  wealth  of  decedent  to  be  considered,  450. 
DECEIT,  fraud  and,  537,  544. 
DECLARATION  OF  SHIPMENT,  273. 
DEFENCE  OF  LAWSUIT,  290. 
DELAY,  payment  for,  157,  166. 

in  delivery,  256,  416. 

of  common  carrier,  196. 
DELIVERY,  time  and  place  of,  283. 
DEMAND,  extraordinary,  251. 

DEPOSIT  OP  MONEY,  ISO,  170,  182,  229,  245,  206,  591. 
DEPRECIATION,  164.  410,  492. 
DESTINATION,  value  at  point  of,  483. 
DETINUE,  481. 

DEVIATION  FROM  CONTRACT,  355. 
DEVISE,  agreement  to,  230. 
DISCHARGE,  imlawful,  360,  376,  364. 

by  threat,  01. 
DISEASE,  cure  of,  90. 
DICTATION  TO  STENOGRAPHER,  681. 


700  INDEX. 

[The  references  are  to  the  pages.] 

DIRECT  AND  CONSEQUENTIAL  DAMAGES,  207. 

in  case  of  wrougful  levy,  205. 

when  city  neglects  to  repair  bridge,  203. 

where  vendor  fails  to  deliver,  208. 

in  an  action  of  tort,  209. 

where  passenger  is  put  off  at  wrong  station,  209,  384. 

throwing  a  sqiiil),  211. 

where  a  woman  is  struck  by  a  locomotive,  215. 

where  a  carrier  delays  delivery  of  a  broken  shaft,  191, 

where  cattle  stray  through  open  gate,  219. 

where  engine  is  not  finished  in  due  time,  73. 

in  case  of  act  of  God,  420. 

where  delivery  of  telegram  is  delayed,  574. 

in  case  of  miscarriage,  218. 

where  business  is  broken  up,  218. 

where  a  city  improves  a  public  street,  218. 

where  a  dynamite  bomb  explodes,  218. 

where  balloon  descends  in  garden,  218. 

in  case  of  boycott  by  orthodox  Jews,  218. 
DISPOSSESS  PROCEEDINGS,  185. 
DISSECTION  OF  DEAD  BODY,  103. 
DIVERSION  OF  WATER,  1,  6,  7,  8,  10,  187,  453. 
DRAM  SHOP  ACT,  586. 
DUTY  TO  INVESTIGATE,  518. 
EARNING  POWER,  loss  of,  54,  98,  121,  412,  413. 
EARNINGS,  not  profits,  100,  87,  411. 
EASEMENT,  47. 

of  light,  air  and  access,  591. 
EJECTION  FROM  DANCE-HALL,  133. 

ELECTION  OF  REMEDIES,  373,  299,  303,  304,  317.  346,  359,  465,  466,  540. 
ELECTRIC  ILLUMINATING  PLANT,  .502.  500. 
ELEMENTS  OF  COMPENSATION,  403,  407,  425. 
ELEMENTS  OF  DAMAGES,  415. 
EMINENT  DOMAIN,  120,  590,  594,  596,  597,  600,  601. 
EMPLOYMENT,  duty  to  seek,  304,  365,  376. 
ENGINE,  failure  to  furnish.  73,  339. 
ENGINEER,  appointment  as,  54. 
ENHANCEMENT  OF  DAMAGES,  560. 
ENTIRE  DAMAGES,  456. 
ENTRY,  wrongful,  118. 
EVIDENCE— 

in  case  of  breach  of  promise,  663. 

in  aggravation  of  damages.  664. 

where  the  spine  was  injured,  665. 

where  medical  experts  testify,  667. 

in  case  of  personal  injuries,  667. 

where  bicycle  experts  testify,  668. 

as  to  light,  air  and  access,  669. 


INDEX.  701 

[The  references  are  to  the  pages.] 

EVIDENCE— Continued. 

as  to  collateral  issues,  670. 
as  to  the  general  course  of  values,  670. 
proof  as  to  loss  of  profits,  671. 
as  to  defendant's  wealth,  673. 
as  to  income  and  earnings,  675. 
photograph  of  decedent  in  testimony,  449. 
offer  as  proof  of  value,  658. 
in  case  of  miscarriage  and  still  birth,  679. 
as  to  profits  of  a  mill,  679. 
as  to  plaintiff's  earnings  prior  to  injury,  679. 
as  to  obedience  and  economy  of  a  boy  of  13,  679. 
EVICTION  UNDER  COVENANT,  238. 
costs  of,  244. 
value  at  time  of,  248. 
EXCEPTIONAL  AND  UNNATURAL  DAMAGES,  270,  390. 
EXCESSIVE  DAMAGES— 

when  new  trial  to  be  granted,  142. 
verdict  the  result  of  passion  and  prejudice,  144. 
where  deceased  had  accumulated  large  wealth,  429. 
power  of  jury  in  case  of  tort,  510. 
where  unchastity  is  imputed,  512,  513. 
where  engagement  to  marry  was  broken,  556. 
where  man  of  wealth  breaks  contract  to  marry,  563. 
power  of  court  to  reduce,  145. 
where  unverified  libel  was  published,  145. 
where  mother  and  babe  are  ejected  from  train,  145. 
where  bright  active  woman  of  40  becomes  insane,  145. 
where  waiter  upsets  tray  on  lady's  gown,  145. 
where  unmarried  female  clerk  lost  an  eye,  145. 
where  plaintiff  lost  three  fingers,  145. 
in  case  of  traumatic  neurosis,  145. 
where  one  eye  is  lost,  145. 
where  laborer  is  incapacitated  for  a  year,  146. 
where  young  man  was  burned  but  mental  faculties  unimpaired,  146. 
for  false  imprisonment  but  no  violence,  146. 
for  ejection  from  train.  146. 

where  thigh  bone  of  street-sweeper  was  broken,  146. 
for  precipitation  into  creek  by  derailment  of  car,  146. 
EXECUTORY  CONTRACT,  241,  259,  309,  322. 

offer  to  perform,  331. 
EXEMPLARY  DAMAGES.  127. 
in  actions  of  trespass,  123. 
threatening  language,  124. 
in  cases  of  terror  and  fright,  115. 

where  passenger  is  assaulted  and  insulted  by  brakeman,  124. 
for  exclusion  from  dance  hall.  133. 


702  INDEX. 

[The  references  are  to  the  pages.] 
EXEMPLAKY  D^UIAGES— Coutinued. 

in  an  action  of  libel,  137. 

for  injury  by  runaway  horse,  140. 

for  insult  to  passenger,  l48. 

where  eye  is  injured  by  assault,  96,  639. 

in  an  action  of  replevin,  4SS. 

for  unprovoked  and  malicious  assault,  507. 

for  libel  charging  elopement,  520. 

for  gross  negligence  in  case  of  libel,  521. 

false  imprisonment  by  employe,  529,  534. 

in  case  of  seduction,  548. 

in  an  action  of  crim.    con.,  549. 

in  actions  under  "Civil  Damage  Act,"  586. 

evidence  of  defendant's  wealth,  673. 

dictation  of  libel  to  stenographer,  681. 

wanton  destruction  of  shade  trees,  142,  506. 

the  theory  attacked  as  wrong,  142. 
EXPENSE  OF  LITIGATION,  647,  648,  652,  135,  290. 
EXPENSES— 

for  cure  of  horse  by  veterinarian,  89,  644. 

for  rent  of  opera  house,  91. 

of  litigation,  648. 

costs  of  court,  290,  648. 

freight  charges,  297. 

rent  of  mill,  78. 

for  transportation  of  reaping  machines,  298. 

counsel  fees.  647,  651. 

costs  and  extra  costs,  650. 
EXPERTS,  testimony  of,  659,  665,  668. 
EXPLOSION  OF  GAS,  48. 
EXPULSION  FROM  CAR,  105.  130. 
FAILURE  OF  CONSIDERATION,  295. 

of  grantor  to  make  title,  229. 

to  perform,  355. 
FALSE  IMPRISONMENT.  527,  529,  534. 
FALSE  REPRESENTATIONS,  539,  543,  545,  546. 
FEELINGS,  injury  to,  121. 
FEES,  of  counsel,  250. 

loss  of,  121. 
FEMALE  PASSENGER,  duty  to,  398. 
FINANCIAL  CONDITION,  97. 
FIRE,  destruction  b.y,  221,  614. 

insurance,  612.  645,  646. 
FISHING,  business  of,  51,  82. 
FLOOD,  injury  to  bridge,  205. 
FLUCTI'ATIONS  IN  VALUE,  207,  619,  628,  605. 
FORFEIT  OF  DEPOSIT,  173. 


INDEX.  703 

[The  references  are  to  the  pages.] 

FRAUD  AND  DECEIT,  537,  538,  543,  546,  545. 
FRIGHT,  101,  102,  118,  122. 

causing  miscarriage.  107,  110,  415. 
wrongful  entry,  118. 
FUTURE  EARNINGS,  362. 
FUTURE  PROFITS,  20,  227,  236. 
GAINS  PREVENTED,  66,  29,  193,  325. 
GAS,  explosions  of,  48. 
GENERAL  REPUTATION,  515. 
GOODWILL,  151,  293. 
GRANDSTAND  AT  RACETRACK,  158. 
HADLEY  V.  BAXENDALE,  rule  in,  191. 
HEMP,  contract  to  ship,  273. 
HIGHEST  INTERMEDIATE  VALUE,  474. 
HORSE,  bailment  of,  253. 

injury  to,  89. 

warranty  of  soundness,  280. 
HOWARD  V.  DALY,  doctrine  of,  366. 
HOUSEHOLD  GOODS,  614. 
HUMILIATION,  120.  394,  400. 
ILLEGAL  ARREST.  529. 
ILLEGAL  BUSINESS.  225. 
ILLNESS  OF  WIFE,  386. 
IMPAIRMENT  OF  CREDIT,  206. 
IMPROVEMENTS,  beneficial,  247. 

INADEQUATE  DAMAGES.  149,  148,  146,  150,  528,  583,  597,  689. 
INADVERTENT  TRESPASSER,  480,  493. 
INCOME  FROM  BUSINESS,  675. 
INCONVENIENCE,  40,  384,  388. 
INCREASED  VALUE  OF  LAND,  248. 
INCUMBRANCES,  covenant  against,  238,  251. 
INDENTURE  OF  APPRENTICESHIP,  39. 
INDIGNITY.  108,  401. 
INJURIA  aS7VS  DAMNO,  1. 
IN.JURY  TO  CREDIT,  296. 
INJURIES,  personal,  146. 

to  health,  523. 
INSPECTION,  opportunity  for,  301. 
INSULT  TO  PASSENGER.  396,  400. 

INSULTING  LANGUAGE.  50,  124,  134,  148,  391,  395,  400. 
INSI'RANCE,  contract  of,  452. 

benefits,  149. 
INTEREST— 

when  ascertainable  by  computation,  32. 

on  deposit  as  security,  182. 

in  contract  to  pay  money.  84. 

upon  purchase  money  of  land,  247. 

in  action  of  trover,  474. 


704  INDEX. 

[The  references  are  to  the  pages.] 

INTEREST— Continued. 

where  a  horse  was  injured  and  killed,  644. 

in  actions  of  tort,  047. 

negligent  destruction  of  property,  647. 

on  bonds  and  coupons,  (i47. 

in  case  of  eminent  domain,  647. 

in  action  for  rent,  047. 
in  case  of  personal  injuries,  647. 
INTOXICATION  OF  SERVANT,  131. 
INTOXICATING  LIQUORS,  abstinence  from,  150. 
INVALID,  147. 
JOINT  TORT  FEASOR,  555. 
JOKE,  practical,  111. 

JURY,  province  of,  125,  510,  511,  533,  549,  555,  683,  690,  694. 
LAND— 

increased  value,  248. 

lateral  support,  12. 

lease  of,  364. 
LANDLORD  AND  TENANT,  182,  234,  237,  545. 
LANGUAGE,  indecent  and  insulting,  391,  395,  400, 
LATE  DELIVERY,  256. 
LATERAL  SUPPORT  OF  LAND,  12. 
LAWSUITS,  costs  of,  288. 
LAWYER'S  TIME,  389. 

LEASE  OF  REAL  ESTATE,  182,  184,  229,  364,  503. 
LEGAL  EXPENSES,  135. 
LEGAL  PROCESS,  abuse  of.  143. 
LIBEL— 

where  physician  was  called  blockhead  and  fool,  137. 

where  verdict  result  of  passion  or  prejudice,  144. 

where  elopement  was  charged,  515,  518. 

where  publisher  did  not  investigate,  518. 

where  publication  was  in  good  faith,  520,  521,  522. 

where  woman  sharpshooter  was  charged  with  crime,  522. 

libel  dictated  to  confidential  stenographer,  681. 

where  plaintiff's  character  is  bad,  514. 

where  an  actress  had  a  lawyer  arrested,  514. 

where  reputation  for  chastity  and  virtue  is  bad,  514. 

where  defendant  refuses  to  retract,  514,  527. 

where  no  pains  are  taken  to  get  correct  story,  514,  527. 
LIENS  ON  REAL  ESTATE,  21. 
LIFE,  expectation  of,  408,  585. 

tables,  37,  80,  585. 
LIGHT,  air  and  access,  669. 
LIQUIDATED  DAMAGES.  164,  170. 

abstinence  from  intoxicating  liquors,  150. 

contract  in  restraint  of  trade,  153. 


INDEX.  705 

[The  references  are  to  the  pages.] 

LIQUIDATED  DAMAGES— Continued. 

for  delay  in  completing  building,  159. 
on  deposit  in  security  for  rent,  182. 
construction  of  war  ships,  186. 
on  notice  to  quit  by  employe,  154. 
on  contract  to  manufacture  bicycle,  668. 
when  enforceable,  186. 
on  a  replevin  bond,  186. 
language  used  immaterial,  186. 

when  breaches  are  uncertain  in  nature  and  amount,  52. 
LORD  CAMPBELL'S  ACT,  445.    See  Death  by  Negligence. 
LOSS  OF  BENEFITS,  542. 

of  earning  power,  98,  134,  447. 
of  employment,  63. 
of  life,  442,  446. 

of  profits,  64,  163,  195,  197,  269,  350,  325.  220,  85,  545. 
special,  476. 

of  services,  546,  548,  550. 
of  time,  48,  50,  51,  52.  225. 
of  wages,  59,  61,  94,  380. 
MACHINERY,  use  of,  76. 
MAGNA  CHARTA,  143. 
MALICE,  implied,  138. 

express,  138,  520. 
MALICIOUS  PROSECUTION,  534. 
MANIKIN,  contract  to  deliver,  251. 

MANUFACTURE,  contract  to,  58,  347,  350,  323.  325,  330,  334.  339,  341,  359. 
MARKET,  second  hand.  257,  262,  276,  284,  477. 
MARKET  PRICE— 

boots  supplied  to  French  army  in  1871,  257. 
bullets  furnished  to  Ohio  in  1861,  202. 
hemp  exported  from  Manila  in  1898,  273. 
contract  in  N.  Y.  for  glass  delivered  in  Antwerp.  284. 
tender  of  400.000  brick.  310. 
on  anticipatory  breach  of  contract,  312. 
fire  works  used  in  4th  of  .Tuly  celebration,  313. 
where  chickens  are  lost  in  a  freezer.  323. 
where  an  ice-house  is  destroyed  by  fire,  409. 
stimulated.  602. 

at  nearest  available  market,  .360. 
MARKET  VALUE,  67.  71.  260.  319.  348.  477,  481. 
MASTER  AND  SERVANT.  131,  370.  .'".29. 
MEDICAL  EXPENSES.  31,  .W,  190,  188,  416. 
MENTAL  ANGUISH— 

in  case  of  miscarriage  through  fright,  102. 
falling  from  defective  bridge,  101. 
mutilation  of  dead  body,  103. 

'  7 


706  INDEX. 

[The  references  are  to  the  pages.] 
MENTAL  ANGUISH— Continued. 

ejection  from  railroad  train,  105. 

fright,  from  team  of  horses,  lOU. 

from  practical  joke.  111. 

unlawful  seizure  of  goods,  114. 

unlawful  entry  on  laud,  110. 

fright  from  threatened  assault,  119. 

ejection  from  dance  hall,  134. 

insult  to  passengers,  397. 

humiliation  of  married  woman,  121. 

loss  of  an  eye  and  disfigurement,  120. 

exclusion  from  public  school,  120. 

trespass  on  land,  121. 

for  discomfort  from  theatened  force,  121. 

for  non-delivery  of  telegram,  121,  581. 

where  a  lady  must  use  a  crutch,  121. 

where  marriage  must  be  postponed,  121. 

where  worry  results,  121. 

where  a  leg  is  lost,  121, 

where  there  is  fright  only,  121. 
MILL  OWNER,  rights  of.  7. 
MISCARRIAGE,  61.  102,  109. 
MISCHIEF,  spirit  of,  139. 
MITIGATION— 

in  trover  and  conversion,  480. 

where  a  servant  is  wrongfully  discharged,  32,  366,  368,  371,  374. 

on  breach  hy  vendee  of  contract  of  sale.  304,  306. 

on  countermand  of  order,  338. 

in  an  action  for  crim.  con..  550,  551,  552,  555. 

in  case  of  public  affray,  631. 

in  an  action  for  assault  and  battery,  633,  634. 

provocation  by  libel,  673. 

in  action  of  trespass,  643. 

bad  character  of  plaintiff.  643. 

general  reputation  for  chastity.  643. 

sick  benefits  from  lodge  or  society,  643. 

on  contract  of  sale,  044. 
MONEY,  always  in  market,  24. 

deposit  of,  ISO.  170.  245. 
MONETARY,  value  of  services,  449. 
MORTIFICATION,  121. 
NATURAL  CONSEQUENCES,  201,  219. 
NEGLIGENCE.  116.  359,  415. 

causing  miscarriage,  109. 

collision  with  automobile,  51,  414. 

by  common  carrier,  210,  217,  387,  416.  419. 

death  by.  423.  427.  431,  441,  449. 


INDEX.  707 


[The  references  are  to  the  pages.] 

NEGLIGENCE— Continued. 

explosion  of  gas,  407, 
expulsion  from  car,  131,  105. 
failure  to  repair,  33. 
fright  to  pregnant  woman,  102. 

to  horse,  89. 
by  municipality,  203, 
to  shade  trees,  409. 
services  of  son  lost,  ISS. 
by  telegraph  company,  567,  573. 
NERVOUS  SHOCK,  106,  116,  118. 
by  practical  joke.  111, 
from  negligence,  116,  118, 
NEW  BUILDING,  contract  for,  160. 
NEXT  OF  KIN,  rights  of,  429,  438. 
NOLLE  PROSEQUI,  193. 
NOMINAL  DAMAGES— 
injuria  sine  dam  no,  1. 
where  a  stream  is  polluted,  19. 
where  a  mill  is  repaired  by  joint  owner,  20. 
on  a  sale  of  goods,  21. 
on  contract  to  pay  liens,  9,  21. 
where  architects  plans  are  involved,  25. 
on  sale  of  "beautifiers  for  women."  85. 
arrest  of  insane  woman  by  police.  527. 
where  railroad  abandons  right  of  way,  27. 
where  right  of  way  is  obstructed,  27. 
where  services  are  without  value,  27. 
on  sale  of  land,  27. 
in  case  of  nuisance,  27. 
where  bank  dishonors  check,  27. 
where  no  market  price  is  shown,  360. 
NON  DELIVERY,  272. 
NON  PERFORMANCE,  271.  325. 
NOTICE  TO  CARRIER.  258. 
NUISANCE,  493,  409,  .500,  .503. 

continuing,  187,  454,  493,  494,  506. 
NT'RSING,  element  of  damage,  188,  98.  416. 
OBSTRTCTION  IN  STREET,  89. 
OFFER  AS  PROOF  OF  VALUE,  657,  658. 
OPERA  HOUSE,  contract  to  furnish,  91. 
OPPORTUNITY  TO  INSPECT,  .301. 
OYSTER  GROWTNG,  40.  47. 
OYSTER-HOUSE,  profits  of.  87. 
PAIN  AND  ST'FFERING,  147.  98.  .52.  209.  122. 
PARTICEPS  CRIMINIS,  .5.36. 
PARTNERSHIP,  interest  in,  315. 


t  Ub  INDEX. 

[The  references  are  to  the  pages.] 

TASSENGER,  ejectiou  of.  127,  105,  200. 

fright  to,  109. 

injury  to,  SO. 

insult  to,  124,  391,  392. 
PASSION  AND  PREJUDICE,  145,  514,  555. 
PECULIAR  VALUE,  476,  477. 
PECUNIARY  ADVANTAGE,  428,  439,  550. 
PECUNIARY  LOSS,  49,  442. 

PENALTY,  See  Liquidated  Damages,  170,  174,  182,  1(!G,  154, 186,  668. 
PERFORMANCE,  impossible,  641. 
PERISHABLE  GOODS,  350. 
PERSONAL  EARNINGS,  413. 
PERSONAL  INJURY— 

from  defective  tiighway,  146. 

exclusion  from  dance  hall,  133. 

fall  on  sidewalk,  59. 

resulting  from  negligence,  415. 

nursing,  medicine  and  doctor's  bills,  416. 

to  leg  of  engineer,  54. 

from  defective  bridge,  101. 

from  runaway  horse,  140. 

from  fall  of  fare  indicator,  86. 
PERSONAL  PROPERTY,  conversion,  34. 
PHOTOGRAPH  AS  EVIDENCE,  449. 
PHYSICAL  INJURY,  526. 
PHYSICIAN,  libel  on,  137,  514. 
PHYSICIAN'S  FEES,  121,  212,  223,  93,  95,  96,  220,  .522.  , 

an  element  of  damage,  though  not  paid,  122,  97. 

must  be  usual  and  reasonable  charge,  97. 

income  of  physician,  proof  of,  221. 

expense  for  procuring  physicians  and  medicine,  522. 

abandonment  of  profession  through  broken  health,  523. 

professional  standing  as  proof  of  value  of  services,  618. 

physician's  bill  must  be  proved,  122. 
PLACE  OF  DELIVERY,  283.  \ 

PLANS  OF  ARCHITECT,  25. 
PLOTTAGE,  599. 
POLLUTION  OF  STREAM,  19. 
PRACTICAL  JOKE,  IIL 
PRICE,  agreed  upon,  333,  405. 

contract,  71,  79. 

market,  2.51. 

measure  of  damages,  241,  291,  003. 

proof  of  value,  291,  603. 

special,  257. 
PRINCIPAL  AND  AGENT,  170. 
PROBABLE  PROFITS,  78. 
PROBABILITY  OF  ACCUMULATION,  429. 


INDEX.  709 


[The  references  are  to  the  pages.] 

PROCESS,  abuse  of,  205. 
PROFESSION  OF  ENGINEER,  57. 
PROFESSIONAL  SERVICES,  618. 
PROFESSIONAL  STANDING,  618. 
PROFITS,  anticipated,  66,  29,  46. 

basis  of  recovery,  405. 

earnings  as,  100,  87,  675. 

future,  46,  227. 
loss  of — 

on  contract  to  build  City  Hall  in  Brooklyn,  64. 

on  contract  to  manufacture  1,500,000  bricks,  84. 

where  mill  is  inactive  on  account  of  broken  shaft,  191. 

exclusive  right  to  sell  cigars,  224. 

mere  speculative  profits  not  recoverable,  79. 

where  pound  or  pot  set  net  injured,  82. 

advertisement  of  toilet  preparations,  85. 

in  business  of  oyster  house,  86. 

for  failure  to  furnish  engine,  73. 

where  perishable  article  is  sold,  350. 

profits  from  sale  of  liquor  on  Sunday,  234. 

when  they  necessarily  follow  breach,  120. 

must  be  reasonably  certain,  121. 

may  be  prospective,  121. 

earnings  of  a  boarding  house  keeper,  122. 

of  a  traveling  theatrical  troupe,  122. 

in  case  of  an  idle  mill,  122. 

must  be  direct  and  immediate,  122. 

proof  of,  672. 

prospective,  82,  227. 

on  resale,  263,  579. 

speculative,  51. 
PROMISE  OF  MARRIAGE,  see  Breach  of. 
PROOF  OF  DOCTOR'S  BILL,  96. 
PROOF  OF  LOSS,  60. 
PROOF  OF  VALUE,  offer  as,  657,  658. 
PROSPECTIVE  DAMAGES,  37,  187,  188,  227,  648 
PROSPECTIVE  EARNINGS,  56. 
PROSPECTIVE  PROFITS,  227,  83. 
PROVINCE  OP  COURT  AND  JURY,  680. 
PROVOCATION,  6.33. 
PROXIMATE  CAI^SE,  210,  463. 
PROXIMATE  DAMAGES.  31.  119,  204,  417,  187. 
PROXIMATE  RESULTS,  105,  110,  79,  142,  393. 
PI^BLIC  SCHOOL,  expulsion,  120. 
PI'BLICATTON  OF  ADVERTISEMENT,  85,  357. 
PURCHASE  MONEY,  when  recoverable,  241. 
QUANTT^M  MERUIT,  3.53,  3.^j4,  H?A.  .367,  618. 
QUANTUM  VALEBANT,  353,  354. 


710  INDEX. 

[The  refereuces  are  to  the  pages.] 

EACE  TRACK,  grundstaud  at,  15G. 
KAILKOAD  TRAIN,  eximlsiou  from,  105,  130. 
REAL  ESTATE,  lease  of,  l22y,  545. 

lieus  on,  21. 

iujury  to,  187. 

injury  to  crops,  655. 
REASONABLE  TIME,  199. 
RELEASE,  mutual,  556. 
REMEDY  FOR  WRONGFUL  DISCHARGE,  367,  371. 

election  of,  299,  303,  307,  312,  317,  148,  371. 
REMITTITUR,  431,  685,  686,  688,  690,  69L 
REMOTE  CONSEQUENCES,  216. 
REMOTE  DAMAGES— 

remote  and  contingent  damages  never  allowed,  70. 

nervous  shock,  result  of  practical  joke,  112. 

physical  injuries  result  of  fright,  118. 

where  a  bridge  was  carried  away  by  a  flood,  204. 

mill  idle  on  account  of  a  broken  shaft,  194. 

exclusive  right  to  sell  cigars,  224. 

duty  of  warehouseman,  222. 

where  cattle  escape  through  breach  in  fence,  219. 

where  passenger  is  put  out  at  wrong  station,  381. 

where  train  is  delayed  by  break  in  road-bed,  387. 

faihu'e  to  furnish  engine  in  time,  73. 

where  chickens  fly  in  spokes  of  bicycle,  462. 

libel  of  artist  in  Buffalo  Bill's  show,  526. 

non-delivery  of  telegram,  570. 

negligent  delay  in  transmitting  telegram,  571,  575. 

in  contract  to  saw  defendant's  logs,  228. 

remote  damages  to  reputation  and  feelings,  228. 
RENT,  116.  184,  78,  545,  017. 

action  for,  159. 
RENTAL  VALUE,  35,  36,  505. 
REPLEVIN,  488,  489,  490,  493. 
REPUDIATION  OF  CONTRACT,  277,  282. 
RESALE,  right  of,  263,  285,  579. 
RECISSION  OF  CONTRACT,  540.  279.  358,  367. 
RESPONDEAT  SI'PERIOR,  136,  127,  396,  529. 
REVOCATION  OF  CONTRACT,  358. 
ROMAN  LAW,  rule  of  eviction,  246. 

breach  of  warranty,  248. 
RUNAWAY  HORSE,  injury  by,  140. 
SALE  OF  GOODS— 

nominal  dn  mages  on,  21. 

deposit  on  sale  of  motor  cars,  170. 

purchase  of  brick  to  be  burned,  84. 

profits  on  sale  of  cigars,  224. 

as  to  pig  iron  to  arrive,  258. 


INDEX.  711 

[The  references  are  to  the  pages.] 
SALE  OF  GOODS— Continued. 

bullets  for  government  contract,  261. 

anticipatory  breach,  272. 

export  of  Manila  hemp,  273. 

defective  eye  of  ox,  277. 

warranty  of  imported  glass,  282. 

warranty  of  steam  coal,  284. 

fraudulent  sale  of  sulphuric  acid,  293. 

sale  of  fluctuating  stocks,  619. 

manufacturer's  profits,  359. 

remedy  on  breach  of  warranty,  359. 

where  there  is  no  market  price,  360. 

where  the  seller  refuses  to  deliver,  3G0. 

in  an  action  for  non-delivery  of  bonds,  860. 
vendee,  breach  of — 

where  manikin  is  sold  on  installments,  251. 

reaping  machine  delivered  on  written  order,  298. 

sale  of  hops  subject  to  inspection,  300. 

tender  of  cattle  purchased  by  agent,  304. 

tender  of  400,000  brick,  310. 

anticipatory  breach  of  contract  to  purchase  Iron,  311. 

fire  works  for  4th  of  July,  312. 

sale  of  interest  in  partnership,  315, 

contract  to  furnish  silicate  of  soda,  347. 

repudiation  of  contract,  321. 

sulky  made  to  order,  330. 

an  engine  made  to  order,  334,  339. 

carriage  made  to  order,  341. 
vendor,  breach  of — 

warranty  against  incumbrances.  292. 

where  a  horse  is  warranted  sound,  280. 

where  a  manikin  is  sold  on  installments,  251. 

where  rifle  muskets  were  sold  in  1801,  2G1. 

In  case  of  sale  to  sub-purchaser,  271. 

export  of  hemp  from  Philippine  Islands.  May  1,  1898,  273. 

where  glass  was  exported  from  Antwerp.  2S2. 

breach  of  warranty  on  sale  of  furnace,  291. 

breach  of  warranty  on  sale  of  sulphuric  acid,  293. 

sale  of  reaping  machine,  298. 

sale  of  floating-boom  derrick,  26,5. 

sale  of  hops,  subject  to  inspection,  300. 

to  arrive,  2.'^)9. 
SALE  OF  GOODS  ACT,  216,  294. 
SALE  OF  OX,  277. 

SALE  OF  PROFESSIONAL   PRACTICE,   153. 
SALE  OF  REAL  ESTATE,  250. 

breach  of  contract,  229. 


712  INDEX. 

[The  references  are  to  the  pages.] 
SALE  OF  REAL  ESTATE— Continued. 

covenant  against  incumbrances,  23S. 

breach  of  vendor,  241. 

breach  of  covenant  of  title,  243. 
SALESMAN,  commissions,  81. 
SALOON,  loan  on,  G16. 
SCINTILLA  DOCTRINE,  683. 
SECOND  HAND  MARKET,  477. 
SEDl'CTION,  540,  550.  560,  561,  664. 
SERVICES,  loss  of,  188,  415,  512,  513.  546,  547. 
SEX,  an  element  in  damage,  425. 
SHADE  TREES,  injury  to,  409,  506.' 
SHAFT,  delay  in  delivery  of,  192. 
SIDEWALK,  defective,  33,  410. 
SLANDER,  113,  512,  513,  514. 
SMART  MONEY,  128,  146,  511,  649. 
SPANISH  FLEET,  166. 
SPECIAL  DAMAGES,  37,  295,  351,  501,  525,  569. 

price,  257. 

circumstances,  287,  327. 

purpose,  266,  268. 

loss,  476. 
SPECIFIC  PERFORMANCE,  72. 
SPECULATIVE  DAMAGES— 

for  fright,  118. 

exclusive  right  to  sell  cigars,  224. 

where  cattle  escape  through  broken  fence,  219. 

injury  to  spine,  665. 

failure  to  receive  promotion,  227. 

on  contract  to  saw  logs,  228. 

uncertain  damage  to  health  and  reputation,  228. 

contingent  damages  not  allowed.  228. 

earnings  of  book  agent,  228. 

probable  increase  in  flock  of  sheep,  228. 

production  of  caviar  by  sturgeon,  228. 
SPECULATIVE  PROFITS,  51,  80.  85,  86. 
SPIRIT  OF  MISCHIEF,  139. 
SQUIB  CASE.  211. 
STARE  DECISIS,  principle  of,  624. 
STEAM  COAL,  contract  to  supply,  284. 
STIPULATED  DAMAGES.  175. 
STOCK  JOBBING,  contract,  608. 
STOCK,  sale  of,  545,  546. 
STREAM,  pollution  of,  19. 
STREET,  obstruction.  89. 
SUBSALES,  327. 
SUBSEQUENT  DAMAGES,  494. 


INDEX.  713 


[The  references  are  to  the  pages.] 

SUBSTANTIAL  DAMAGES.  554. 

SUNDAY,  sales  on,  235. 

SUPPLY  AND  DEMAND,  605. 

SURVIVABILITY  OF  ACTIONS,  433. 

SWELL  FRONT,  499. 

TELEGRAPH  CO.,  actions  against,  144,  567.  571.  574,  581. 

TEXAS  DOCTRINE,  458. 

THEATRICAL  ENGAGEMENT.  174.  374. 

THREATS.  61.  134. 

TIMBER,  severance  of,  482. 

TIME,  loss  of,  48,  51.  .52.  121,  225,  339. 

reasonable.  199. 

value  of.  88,  221. 

and  place  of  delivery,  283. 
TITLE,  rule  of  damages  when  bad,  229,  245. 

covenant  of,  243. 

of  goods,  when  it  passes,  252. 
TORT,  not  bound  to  sue  in.  261. 
TRADE  UNION,  61. 

TRANSPORTATION  BY  COMMON  CARRIER,  256. 
TRESPASS  QUARE  CLAUSUM,  218.  20.  123,  219,  481. 
TRESPASSER,  inadvertent,  480,  493. 
TRIVIAL  DAMAGE,  228,  507. 
TROVER,  see  conversion. 

UNCERTAIN  DAMAGES.  47.  174.  221.  81.  228.  362. 
UNCHASTITY,  imputation  of,  113,  565.  .506. 
UNEARNED  INCREMENT.  79,  248. 
UNLAWFUL  COMBINATIONS.  597. 
UNLAWFUL  DISCHARGE,  see  wrongful  discharge. 
I'NLAWFUL  SEIZURE,  114. 
VALUE— 

purchase  price  as  element.  291. 

on  sale  of  touring  car,  297. 

coal  mined  by  innocent  trespasser,  466,  467. 

plottage  as  an  element,  .599. 

cost  to  replace,  an  element,  61.3. 

original  cost,  an  element,  614. 

where  there  is  no  market,  6,30. 

for  conversion  of  a  ship,  630. 

Carlisle  tables  as  evidence,  630. 

depreciation  of  land  value  through  iniiiiiig,  0.30. 

cutting  timber  on  jmblic  lands.  0.30. 

where  health  officer  kills  animal  with  luheri-ulusis,  630. 

where  shade  trees  have  been  destroyed,  630. 

market,  67,  71,  481,  537,  596. 

rental,  35,  36,  670. 

proof  of,  281. 

at  time  of  eviction.  292. 


714  INDEX. 

I  The  references  are  to  the  pages.] 

VALUE— Continueii. 

at  time  chattel  is  tulcen,  249,  280,  494. 

highest  marliet,  475.  477. 

of  contract.  02. 

of  time.  S8,  221,  389. 

peculiar,  475,  477. 

sentimental,  475,  477. 

general  course  of,  G70. 

in  fire  insurance,  012. 

of  land,  590. 

fluctuations,  207. 
VARIATION  FROM  TERMS  OF  CONTRACT,  354, 
VENDEE,  breach  by,  see  sale  of  goods. 

remedy  of,  see  sale  of  goods. 
VENDOR,  breach  by,  see  sale  of  goods. 
VENDOR'S  RIGHT  OF  RESALE,  316,  see  sale  of  gooda. 

lien,  318. 
VERDICT,  result  of  passion  and  prejudice,  145. 
VIOLATION  OF  LEGAL  RIGHT,  103- 
WAGES,  constructive  service,  377. 
WAIVER,  333,  355,  460. 
WALKING  DELEGATE,  61. 

WANTON  AND  MALICIOUS  INJURY.  125,  128. 
WARRANTS,  general,  143. 

WARRANTY,  breach  of,  245,  292,  280,  277,  2S2.  284,  291.  295,  297,  323. 
See  sale  of  goods,  breach  of  vendor. 

implied,  277. 
WATERCOURSE,  diversion  of,  1.  187,  4.53,  450. 

pollution  of,  19. 
WEALTH  OF  DEFENDANT,  .550. 
WEARING   APPAREL,   614. 
WHALING  VOYAGE,  360. 
WILL,  contract  to  make,  232. 
WORDS,  no  justification  for  assault,  633. 
WORK,  labor,  and  services,  ,300.  1.50,  175,  154.  .'555.  304,  370,  306,  374,  334, 

380,  381. 
WORRIMENT,  an  element  of  damage,  .388.  121. 
WRONGFUL  DISCHARGE— 

removal  from  whaler  at  Sandwich  Islands.  300. 

plaintiff  bound  to  mitigate  damages,  .30. 

doctrine  of  constructive  service,  376,  381. 

agreement  to  worlc  farm  on  shares,  304. 

contract  of  theatrical  artist,  300. 

plaintiff  need  not  accept  reduction   of  iiay,  374,  380. 

plaintiff  may  sue  at  once,  380. 

no  recovery  for  future  installments,  .381. 

must  seek  other  employment.  .3SL 


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